Joint Committee On Human Rights Sixth Report


  Assessing the impact of the Human Rights Act on local government and health has involved a series of reality checks and a significant lowering of expectations in understanding the limited extent to which human rights considerations figure in these areas. The social housing field is no different in this regard but it also introduces a new dimension where the Human Rights Act sits in potential conflict with an overriding policy objective namely to facilitate the provision of social housing by non—public bodies. For the social housing sector, therefore, the major concern relating to the Human Rights Act is not the question or outcome of legal challenge but the prospect that the Act will cause them to be treated as public bodies/bodies with public functions for a host of other purposes. This may be a unique situation and certainly not one anticipated in selecting social housing as one of the areas under study. The discussion below cannot convey all the arguments and intricacies surrounding this issue but it may help to illustrate what can happen when the HRA and human rights considerations run contrary to policy in a specific area.

8.1 Application of the Human Rights Act to social housing providers

  Social housing is provided by some 1,400 non-profit Housing Associations and Registered Social Landlords (RSLs). There are powerful housing policy considerations arguing for these associations not to be treated as public bodies. Foremost amongst these arguments is the desire to allow social housing providers to be free from Government financial regulations and procurement rules in order to be able to meet social housing demand in the most flexible manner possible. However, this financial freedom is already being questioned within the European Commission. In this context, the HRA and its broad definition of public authorities/bodies with public functions presents an unwelcome complication.

  The question of whether Sections 6(1) and 6(3) (b) of the Human Rights Act cover registered social landlords is therefore of considerable policy and political significance for the housing sector. It is clear that local housing authorities are public bodies for the purposes of the Act. However, the policy of the Housing Act 1988 has long been to treat Housing Associations and RSLs as private bodies. And it had been established, before the coming into force of the HRA, that such bodies were not susceptible to judicial review. At the same time, housing associations' reliance on significant state funding, registration by the Housing Corporation and acquisition of housing through large-scale transfer of council housing stock (sometimes to purpose-created RSLs) would argue that at least some of their activities were of a public nature.

  These matters have been debated in court. In Donoghue v Poplar Housing and Regeneration Community Housing Association22, the Court of Appeal found that the association was functioning as a public authority (given the nature of the association and the specifics of the complaint). The association had been created by Tower Hamlets for the transfer of its council housing stock and five of the council's members sat on the management board. This fact taken together with Ms Donoghue's complaint, that the notice only termination of assured shorthold tenancies was a breach of Article 8 of the Convention, caused the Court of Appeal to rule:

    "Taking into account all the circumstances . . . In providing accommodation for the defendant and then seeking possession, the role of Poplar is so closely assimilated to that of [the local authority] that it was performing public and not private functions".23

  The Poplar case has not removed uncertainty over the status of social housing providers under the HRA. This has caused the Law Reform Commission to address the matter as part of its review of tenancy law. In its report "Renting Homes 1: Status and Security", the commission posed the question whether "it should be made clear by statute that registered social landlords should be deemed to be public authorities for the purposes of the Human Rights Act 1998,in relation to their not-for-profit housing activities".24 This proposition has not been favourably received within the social housing community. As a result, the unsettled question has loomed large and outweighed any consideration of how human rights might be applied in the social housing field. It has also complicated efforts in this research to discuss what benefits might be derived in this area from the presence of a human rights commission.

8.2 Supervision of the social housing sector

  Social housing policy is set by the Office of the Deputy Prime Minister. The social housing sector is regulated by the Housing Corporation. It is represented by the National Housing Federation and, on an individual professional level, by the Chartered Institute of Housing. Complaints concerning the activities of social housing providers may be referred to an Independent Housing Ombudsman.

  Social housing providers are administered and regulated by the Housing Corporation which also acts as the conduit for much of the funding for the sector. The Housing Corporation has a range of regulatory powers and sanctions available to it if faced with poorly performing Housing Associations or RSLs. These include banning unsuitable persons from the body, putting its own representatives on management boards, recovering funds inappropriately spent to the ultimate sanction of requiring the transfer of housing stock to another association. In reality, most of these sanctions remain unused because the Housing Corporation's control of the purse strings provide the most effective leverage—not forgetting that an organisation poorly regarded by the corporation will also struggle to raise private sector finance. Inspections of local authority housing and social housing providers are contracted out to the Housing Inspectorate (part of the Audit Commission) which employs a star rating system. The Housing Corporation issues guidance for social housing providers on such matters as equality, allocation policies and good practice. Human rights considerations do not figure in this guidance nor has the corporation offered specific guidance on human rights matters. This omission may be directly attributed to the desire not to establish any form of public status for social housing providers. Conversely, the Housing Corporation audited its own policies, procedures and practices for compliance with the HRA because of noises being made by social housing providers and the National Housing Federation that they might wish to use the Act (as non-public bodies) to challenge certain of the corporation's enforcement procedures. In practice, no such challenge has arisen and the Housing Corporation considers that its practices comply with the ECHR (specifically Article 6).

8.3 Human rights guidance and social housing

  Apart from the Housing Corporation, the main sources of guidance for persons working in social housing are the ODPM, Chartered Institute of Housing and National Housing Federation. The National Housing Federation is the main representative body for the sector. While it has a strong lobby function, the federation maintains a cordial and good working relationship with the ODPM and Housing Corporation. The Chartered Institute of Housing is more influential in the local government housing sector and in seeking to raise professional standards within the housing profession. Some of these bodies have addressed the implications of the HRA in guidance provided for the housing sector. We noted in section three that the ODPM website includes guidance on the implications of the HRA for social landlords and an assessment of the implications of R v Bracknell Forest District Council for the use of introductory tenancies. The Chartered Institute for Housing produced "A Guide to the Human Rights Act for Housing Professionals" in 2001 (based on work in Scotland) and has plans for a more specific "Human Rights Act for Housing Officers: Guide to proofing day to day practice". The Institute also includes references to human rights issues and cases in its regular bulletins for the housing sector. Interestingly, the impact of the HRA forms a (small) part of the Institute's "Certificate in Housing" which it wishes to make the gateway qualification to employment in the housing profession. 25 The National Housing Federation published guidance on the HRA in the September 2000 edition of Housing Today but includes no information on the Act on its website. The Housing Corporation has published no guidance. Up to date guidance covering housing aspects is available (in book form, case alerts and bulletins) from commercial law firms for those willing to pay or subscribe. The housing sector was also the subject of the only human rights conference organised by the LGA in 2002 but attendance was said to be disappointing.

  The overall picture painted is that it is possible for a housing organisation to build a "human rights library" but this would require some dedication and the canvassing of many sources. There are no obvious "go to" sources as maintained for racial equality matters.

8.4 Human rights issues and social housing

  There have been few legal challenges with direct implications for the social housing sector. However, the outcome of the case of R v Bracknell Forest District Council regarding the use of introductory tenancies had important implications for social housing providers who operate a similar system of Assured Shorthold Tenancies for problematic tenants. As with introductory tenancies, this allows them to end a tenancy without having to show grounds, give reasons and undertake the lengthy court process required to terminate a Full Assured Tenancy. The court's ruling upholding the use of introductory tenancies was a more positive result than had been anticipated by the housing sector where changes were already in train on the assumption that the existing system would not be found to comply fully with the Convention. This remains an area of concern, therefore, for the social housing sector. Indeed, termination proceedings under an assured shorthold tenancy by an East Anglian housing association were challenged under the HRA. The association concerned did not have the resources to fight the case and settled out of court. The issue is of such import for all social housing providers that the National Housing Federation would consider assisting in the funding and construction of the defence should such a case get to court.

  The social housing sector is unusual in that its ombudsman is able to handle matters where a legal remedy is available (unlike the local government ombudsmen). The Independent Housing Ombudsman is a statutory body approved under the Housing Act 1996. Any suitable body is entitled to run an ombudsman scheme under the Act. The remit of the Independent Housing Ombudsman does not extend to local authority housing (which continues to provide most of the casework of the various local government ombudsmen). The Independent Housing Ombudsman will consider arguments raised under the ECHR. In a case brought against Swale Housing Association the ombudsman found that the association had violated the complainant's human rights by requiring that she have no contact with the father of her new born child while resident in one of its refuges and then evicting her when she breached this condition. Swale was found to be fulfilling a public function in operating a "statutory housing register" on behalf of the local authority and was said to have confused its roles as administrator of the register and being one of the landlords taking part in the register. Considering other aggravating factors, such as the fabrication of allegations against the complainant by a member of staff, the ombudsman ordered the association to pay £3,000 in compensation and to train its staff and board members on the implications of the HRA. 26 For the moment, this case stands alone but it may set precedents for the future.

8.5 A Human Rights Commission and social housing

  Missing from this treatment is discussion of the impact of human rights and the HRA in individual housing associations. Attempts to contact individual associations as part of this research were ignored or unsuccessful. Given what has been argued above, however, it would be surprising if human rights considerations had penetrated deeply into the work of social housing providers. Housing Associations and RSLs are small organisations that do not have the corporate and legal resources to address human rights issues on their own account. They will take their lead either from their "parent" local authority (where there is one) or from what is being put to them by their regulatory or representative bodies. However, the desire to distance social housing providers from the public sector means that they are not being encouraged to engage with the HRA by any of these bodies. At best, social housing providers might be asked to address human rights considerations as matters of good practice but no more. This situation is likely to continue for as long as uncertainty remains over the extent to which such bodies are covered by the HRA. There are, nevertheless, areas (as discussed above) where human rights challenges may yet impact on the work of social housing providers.

  What might a human rights commission contribute in this situation is difficult to judge. It would be able to contribute to the debate over the extent to which the HRA and human rights considerations should apply to the provision of social housing but pending resolution of this issue might struggle to make a meaningful impact in applying human rights within the social housing sector. It would be difficult to find active partner organisations to work with before this question was resolved. And a commission with the ability and intention to bring a test case on something such as the compatibility of assured shorthold tenancies with the Convention would not win friends in the social housing sector. However, this is not wholly fallow ground, as evidenced by the very substantial efforts made to address questions of racial discrimination in the provision of social housing.

  There is very great awareness of the need to tackle racial discrimination in the provision of social housing. The CRE, Federation of Black Housing Associations, National Housing Federation and Housing Corporation have undertaken a "Race and Housing Inquiry" which published a "Race Equality Code of Practice for Housing Associations" in 2002 based on submissions and hearings across the housing sector. This sets racial equality standards and outcomes for social housing providers in areas of service delivery and employment. 27 A related project involving the Home Office, ODPM, Housing Corporation, CRE and de Montfort University is now testing a race equality toolkit in nine housing associations to enable these associations to conduct race equality audits benchmarked against best practice. 28 Moving outside the question of racial equality, the National Housing Federation is also in the early stages of developing a broader "Equality Accreditation Scheme" covering governance, employment and service delivery in social housing providers.

  Human rights feature only briefly in these codes, toolkits and schemes. They are unlikely to gain greater prominence without a sponsor and champion in the form of a human rights commission.

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