Creating a fairer Britain
Our new guidance - Human rights at home - is intended to help those who work for social housing providers, such as housing associations or local authorities, to comply with the Human Rights Act 1998 (the HRA or the Act). Social housing providers which contract out the management of their housing stock to, for example, an ALMO (arm's length management organisation), should also ensure that this guidance is brought to the attention of that organisation.
This guidance should:
The rights contained in Articles 6, 8 and 14 are those which are most likely to be relevant to your work in social housing.
Article 6 is an absolute right. Everyone has the right to a fair and public hearing, before an independent and impartial tribunal, within a reasonable time. This right applies where someone's private rights are at stake, such as in contractual or property disputes. It also applies to criminal trials. 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. For example, a person who is subject to a decisionmaking process in relation to a possible eviction should have access to an interpreter, if necessary. Decisions should be given with reasons. Article 6 is likely to be particularly relevant in review or appeal proceedings which would determine a tenant's rights. However, it may not be necessary for decision-making to fulfil all the conditions of a 'fair hearing' if a person has access to a subsequent appeal process which would satisfy these requirements.
Read more about Article 6
Everyone has the right to respect for their private and family life and also the right to respect for their home and correspondence. 'Private life' has a very wide meaning. People should be able to live in privacy and be able to live their life in the way that they choose. Their personal information should be kept private and confidential. 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. You should take positive steps to prevent other people seriously undermining a person's home or private life, for example, through serious pollution or anti-social behaviour. Article 8 is a qualified right. This means that you cannot interfere with the right, for example by forcing people to leave their homes, unless you are acting in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. You must be acting in accordance with the law and there must be no less intrusive way of achieving your objective.
Read more about Article 8
This means that everyone must have equal access to the other rights contained in the HRA, regardless of their race, religion, gender, sexual orientation, disability, political views or any other personal characteristic. 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. In order to gain protection under Article 14, the treatment complained of must relate to one of the other Convention Rights, but it need not amount to a breach of that other right. 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.
Article 8 (which includes the right to respect for a home)
The guidance looks at how the HRA may impact on a social housing provider's services from allocation of accommodation, at one end of the spectrum, to termination and eviction at the other.
The HRA does not give anyone a right to the provision of a home from a particular social housing provider. In some circumstances, the Convention Rights would require the UK to provide shelter for those who are so vulnerable that they would not receive respect for their family life or private life if they were left on the streets (perhaps by reason of their disability or destitution10), but the HRA does not impose an obligation on any individual social housing provider to do so. Social housing providers' obligations to make housing available are to be found in the ordinary housing legislation dealing with allocation of social housing and homelessness and in the relevant regulatory requirements.
Example: 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. No Convention Right is involved here. There is no right to a home in the Human Rights Act. There is no human right to a garden.
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.
Example: A group of social housing providers operate a choice-based lettings system which involves properties being advertised online. The providers will need to ensure that the online materials are available in accessible formats and that arrangements are in place for those applicants without computer access to get information, in accessible formats, about properties and how to bid for them.
Until an applicant actually signs up for a tenancy, they do not have a 'civil right' to any accommodation. For this reason, provisions in Article 6 about the fair hearing of disputes about civil rights are unlikely to apply to the application and allocation stage. However, this may possibly change in the future. It may therefore be prudent for social housing providers to ensure that not only are applicants given notice of adverse decisions in writing but perhaps also that they are supplied with written reasons for those decisions. Likewise, disappointed applicants might sensibly be told how the provider's decision might be challenged and where independent advice can be obtained locally.
Social housing providers, especially local authorities, are likely to be subject to statutory or regulatory obligations to provide certain aids to tenants, or permit certain adaptations to social housing, in the interests of disabled residents.
There is no human right to the provision of a home with particular aids or adaptations any more than there is a right to the provision of any home at all. However, once a person has a home then they are entitled to respect for it and to respect for their private lives in the enjoyment of it. The social housing provider may in some circumstances become obliged to address difficulties that arise for particular residents which prevent them from enjoying their homes.
Example: A social housing provider agrees to supply and fit grab-rails within a tenant's home on the recommendation of an occupational therapist (OT) that such aids are essential. If the fitting has been delayed for nine months (for example, five months waiting for an OT visit, one month waiting for the OT to produce a report, and three months waiting for the fitting) that might well amount to a failure to accord respect for the tenant's home.
Example: A disabled social housing tenant is increasingly unable to use the communal stairs. He asks for permission to install a stairlift along the staircase. In deciding the application, the housing provider should consider both the interests of other users of the communal stairway and the particular tenant's human right to 'respect' for his home (which would include a reasonable expectation to be able to readily leave it and return to it).
Nothing in the HRA provides occupiers of social housing with an excuse for deliberately engaging in behaviour which is a nuisance or annoyance to others. Social landlords and other agencies that proportionately take measures to address and control such behaviour will not be infringing any human rights. As already indicated, nothing in the HRA relieves an occupier of social housing of their contractual obligations to comply with the conditions of their tenancy agreement provided that they are compatible with Convention Rights.
In extreme cases, the action that a social housing provider takes can engage with the perpetrator's human rights to respect for his or her home or private and family life. But 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, having regard to the interests mentioned in Article 8 (for example, the need to respect the health or rights and freedoms of others).
Example: Despite warnings, a resident of social housing will not desist from causing serious nuisance or annoyance to others. The housing provider obtains an injunction but it is seriously and repeatedly breached. The provider then applies for and obtains an order committing the resident to prison. While in detention, he displays no remorse but expressly says he will 'get' his neighbours on his release. The landlord seeks an outright possession order which the court has a discretion whether or not to grant. Such a scenario suggests that the landlord is acting within the law and taking necessary and proportionate action.
The response of social housing providers to incidents of anti-social behaviour is more likely to engage with the human rights of victims than with those of perpetrators. While there is no human right to expect a social housing provider to keep a resident safe and free from nuisance at all times, a failure to address or tackle the reported experience of anti-social behaviour may well amount to a failure to respect the private or family life of a victim or an infringement of his or her right to respect for the home.
Example: A resident complains to a social housing provider that a group of its tenants are making her home life miserable by shouting at her from outside her home, throwing refuse into her garden, sitting on her front wall and playing loud music and using foul language well into the night. The landlord knows who the perpetrators are but decides to take no action for fear of reprisals against its staff and given its potential obligation for re-housing of the perpetrator family (which includes a number of vulnerable individuals). Doing 'nothing' in these circumstances is highly likely to amount to a breach of the victim's right to respect for private life, family or home
Article 8 requires that an occupier is given 'respect' for his or her home. Eviction is the highest form of interference with that right. The threat of eviction is not much short of it.
To avoid an eviction which is unlawful under the HRA, where a social housing provider which is subject to the Act is seeking to terminate a tenancy (or other form of occupation) and thereafter evict the occupier, it should be able to show that it is acting in accordance with the law, that its actions are in pursuit of a legitimate aim, and that they are both necessary and proportionate.
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 (commonly) that it is reasonable to evict the occupier.
The UK Supreme Court has recently decided that in all these sorts of cases when examining a possession claim where the point is raised, the local courts will have a responsibility to consider whether the interference with the right to respect for the home (that eviction would involve) is justified. Such justification involves the court being satisfied that the three requirements of Article 8 are met:
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.Cases at the extremes are easy to identify and determine. A tenant is highly unlikely to be lawfully evicted for a minor transgression of the tenancy but is highly likely to be lawfully evicted if engaged in a campaign of serious and violent anti-social behaviour.
The preceding material is applicable to social housing providers in Scotland, subject to certain points indicated in the footnotes. Social housing providers operating in Scotland should be aware of two additional issues. For more information see the full guidance document.
The guidance contains a checklist of questions you can ask yourself when making decisions about how to treat people, to check whether what you propose to do is likely to breach the HRA.
These questions can also help you to review your existing and proposed policies and procedures to check whether they are likely to result in decisions or treatment which comply with the HRA. Importantly, you should ensure that your policies allow individual circumstances to be taken into account in decision-making and avoid application of blanket policies. This will allow you, where necessary, to consider whether what you intend to do is proportionate in individual cases.
Download the full report containing the checklist.