Joint Committee On Human Rights Written Evidence


4.Memorandum from the Chartered Institute of Housing

1.  BACKGROUND

  1.1  The Human Rights Act came into force in October 2000. The Act compels public authorities to act in ways that are compatible with the European Convention on Human Rights ("the Convention") in carrying out their functions. The only exception is when the authority is bound by primary legislation to act in a way that is incompatible with the Convention.

  1.2  The purpose of the Convention is to set limits on the power of the state, and in particular to ensure that administrative decisions are free from political influence in a way that would interfere with fundamental rights and freedoms of the individuals affected by them. As such the Act only binds the institutions of the state referred to as `public authorities'.

  1.3  In July 2000 CIH published A Guide to the Human Rights Act 1998 for Housing Professionals. The aim of the Guide was to be a concise introduction to the Act and to equip the reader with a broad understanding so that they are able to apply it to new problems as they arise. It was not intended to be a statement of CIH views as to how human rights principles should be applied to housing policy.

2.  SUMMARY OF CIH POSITION

  2.1  CIH does not believe that the Leonard Cheshire case has created any gaps in Human Rights Act protection that need to be filled. We broadly support the approach taken by the courts so far for the following reasons:

    —  Drawing wider boundaries may bring with it the danger that the Act will extend to all private contracts with the state or to any non public sector body which receives state funding. This would extend the scope of the Act in a way that was never intended.

    —  The position adopted by the courts can be justified on the basis of applying first principles. The Convention is intended to set limits on the arbitrary power of the state, rather than regulate behaviour between private individuals.

    —  Housing associations are independent bodies and partly rely on private sector freedoms for their effectiveness. If all their activities (ie anything other than housing management) were covered by the Human Rights Act then this may endanger their ability to develop or introduce new services.

    —  It is not necessary to further widen the definition of public function to include most housing association activities. The strongest argument for housing associations to be brought within the Act is to ensure that their tenants enjoy certain minimum standards of security of tenure. However, tenants are already covered as any challenge to their security is ultimately determined by the courts are bound to apply the Convention when making their decisions regardless of the landlord status.

    —  Housing association activities are already heavily regulated through a number of regimes these include: Housing Corporation Regulation, Audit Commission inspections and investigations by the Independent Housing Ombudsman. Further regulation may also apply through the Charity Commissioners and the Companies Act. Together with the role of the courts these are more than sufficient to ensure tenants receive basic minimum standards of service.

  2.2  At present CIH approves of the approach adopted by the courts and is content for the courts to continue to develop the law using the concepts they have adopted and which were applied in Donoghue v Poplar HARCA [2001] EWCA Civ 595. We support the principle that whether or not non-state institutions fall within the scope of the Act should be determined by the nature of the activity rather than the type of organisation. To adopt a different approach may lead to unintended consequences.

3.  ARGUMENTS FOR TREATING OR NOT TREATING ASSOCIATIONS AS PUBLIC AUTHORITIES

  3.1  The courts have taken a fairly restrictive view of what constitutes a "public authority". They have developed the line that a private organisation involved in delivering public services will not normally fall within the scope of the Act unless they are carrying out an activity that is inextricably enmeshed with the delegating state authority. For example, in undertaking day-to-day housing management activities, a housing association would not fall within the scope of the Act. However, if a housing association provides homelessness services on behalf of a local authority, such as providing temporary accommodation pending homelessness decisions, it would fall within the scope of the Act, but only in respect of that particular activity.

  3.2  This approach is strongly supported by the National Housing Federation (NHF). The NHF view is that housing associations are already tightly regulated and that bringing them within the scope of the Human Rights Act would restrict their ability to make executive decisions. This view can be justified on grounds that housing associations are independent bodies and are not part of the state. In particular their executive actions are not driven by, or made in the name of, the state's political authority.

  3.3  The drawback of this approach is that it applies a different standard to local authority and housing association tenants and implies a change in status where housing stock is transferred. This position may be exposed to greater scrutiny as new forms of landlord emerge, such as arms length management organisations (ALMOs).

  3.4  However, a boundary that sets the limits of a "public authority" has to be drawn somewhere and one drawn wider than the current limits would be no less arbitrary. It would also bring with it the risk that it would reach further than it was intended or is appropriate. For example, it would be difficult to include the housing management functions of housing associations without also including other bodies whose work is derived from a contract with the state or in providing a public service. Such a position would go way beyond the scope of the Convention.

  3.5  The alternative to a definition that hinges on particular activities is to prescribe a list of organisations that are deemed to be public authorities for the purpose of the Act. The drawback of this approach is that once prescribed, all those organisations' activities will be subject to Convention standards whether or not they are public in character. This may adversely affect associations' ability to develop new housing for example by restricting their freedom to attract private finance.

  3.6  The most compelling argument for including housing associations is that the Convention guarantees minimum standards when a tenant's security of tenure is threatened. At first sight applying the Donoghue case it would appear that housing association tenants enjoy a lower standard of security than their local authority counter-parts. However, this literal interpretation is misleading and somewhat overstates the true position. The courts are themselves public authorities and thus are obliged to apply Convention standards when hearing individual possession cases, regardless of which sector the tenant is in (ie it includes purely private cases as well). Arguably then the effect of limiting the scope of the Act to the "public authorities" may have little effect on the levels of protection afforded to different classes of social sector tenants.

  3.7  More recently there have been developments in policy which give non public sector social landlords similar powers to local authorities. In particular, it is planned to give housing associations similar coercive powers to local authorities to deal with anti-social behaviour. Some of these powers extend to areas that have traditionally been the exclusive role of the state, such as the use of injunctive powers to restrain citizen's behaviour (for example anti-social behaviour orders (ASBOs) and Housing Act injunctions). There is an argument to bring the use of this type of power within the scope of the Act. On the other hand it can be argued that since the courts make the decision in individual cases to grant an order or injunction the Act already offers sufficient protection to individuals indirectly.

  3.8  The courts are yet to decide the position of ALMOs whose stock is still owned by the local authority but which will be run more like independent bodies, at a distance from political control.

  3.9  There may be legitimate concerns about the protection of the human rights of vulnerable people living in private or other independent housing such as care homes. However, we believe that the proper way to ensure their human rights are not breached is through the action of the state acting as a regulator. Cases from the European Court of Human Rights have indicated that where an important individual right is at stake and the applicant is suffering significant detrimental effects then there may be a positive duty on the state to intervene. For example, Costello-Roberts v UK (1993) 19 EHRR 192. This may be particularly true of the more fundamental rights and freedoms such as Article 3 of the Convention (prohibition on torture and inhuman or degrading treatment). However, so far the courts have been reluctant to imply any positive obligation on the state to intervene, see for example Hussain v Lancaster City Council [2000] 1 QB 1, a case of racial harassment.

April 2003


 
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