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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