13.Memorandum from SHELTER
The JCHR has invited comments and evidence from
Shelter on how users of local housing authority services might
be affected, should they be unable to rely on the protection of
the Human Rights Act (HRA) in relation to housing associations
and other private landlords.
Shelter welcomes the opportunity to give such
evidence. Registered social landlords (RSLs) and housing associations
(HAs) —as a result of new development, the contraction of
the local housing authority (LHA) sector and stock transfer—are
rapidly becoming the majority provider of social housing. Since
1989, there have been over 150 large-scale voluntary transfers
of local authority stock. Nearly 50 per cent of social housing
is now out of LHA control and this figure will continue to increase.
In addition to this, RSLs and HAs continue to be the recipients
of large amounts of public funding—since 1974, over £20
billion of public money has been invested in housing associations.
The increased reliance on non-LHA housing providers is also reflected
in the increased powers afforded to RSLs and HAs by legislation.
The issues that the Committee is seeking to address are therefore
of great importance to current debate about public bodies and
the role and status of social housing providers.
Is the meaning of "public authority"
under HRA, as interpreted by the courts, the right one?
The current interpretation of the HRA as interpreted
by the courts lacks clear definition of what constitutes a public
authority. The recent case of Donoghue v Poplar HARCA has
provided some degree of clarity through its judgement that, under
certain conditions, a distinction can exist between a public body
and a private body undertaking public duties. However, this and
the Leonard Cheshire cases are of limited use in the broader
debate about the nature of public bodies because they relate only
to a proportion of RSLs and HAs. The Leonard Cheshire case
is an instance of a specialist housing function being undertaken—similar
to arrangements made between social services and private care
homes—and distinct from the housing management functions
of most RSLs and HAs. There therefore remains a substantial level
of uncertainty of the position of tenants within other RSL and
HA stock, including the significant amount of tenants now in large
scale voluntary transfer housing (LSVTs).
Both the Donoghue and Leonard Cheshire
cases also suggest that UK courts are set to interpret the
Act in a generally conservative manner. The Donoghue judgement
that a private body must not only be providing services on behalf
of a public authority, but must also have a sufficiently close
and assimilated relationship with it, appears to both significantly
narrow the scope of what constitutes a "public authority"
and limit it to a number of specific activities.
It is Shelter's view therefore that the current
interpretation offered by the courts is too limited and too restrictive.
The definition as it stands fails to recognise that RSLs and HAs
are providing a changing and expanding public role in relation
to social housing. In many cases, RSLs and HAs are taking over
the functions that were previously the responsibility of local
housing authorities. The growth of LSVTs and the fact that in
many instances RSLs are now responsible for homelessness and allocation
functions also support this argument.
Such a restrictive definition also appears to
contradict the current direction of housing policy. Rent restructuring,
the aim of having a single "social tenancy" and the
equal ability of HAs and RSLs to issue anti social behaviour orders
(ASBOs) to their tenants all point towards a policy of parity
between HAs/RSLs and LAs which is not reflected in the current
definition. In addition, the Anti Social Behaviour bill currently
before parliament involves a number of duties and powers for social
housing providers that apply equally to LHAs and HAs/RSLs. These
include a duty to publish a statement about policies and procedures
for tackling anti social behaviour, as well as expected powers
to seek injunctions and to demote the tenancies of their tenants.
The existing interpretation also fails to give
sufficient recognition to the fact that in some areas, there is
little to distinguish between LHAs and HAs/RSLs. For example,
HAs and RSLs are subject to statutory guidance on housing management
(via s 36 of HA 1996) that closely mirrors that required for LHAs.
This makes it important HAs and RSLs are required to carry out
these functions in a way that is consistent with human rights
legislation.
What in practice might be expected to be the impact
of the definition of public authority applied by the courts for
the protection of human rights?
The HRA's lack of clear definition of what constitutes
a "public authority" leaves areas open to contest and
challenge in the courts and means that unclear boundaries are
likely to persist between public and private authorities. Having
areas remaining open to challenge under the Act is limiting the
potential for rights development and progressive social change
contained within the Act. The piecemeal development of case law
means that greater clarity in future in important areas cannot
be expected through this route.
The definition as currently applied by the courts
might be expected to result in potentially differential treatment
between tenants of RSLs/HAs and LHAs in several areas of their
functioning:
(a) Homelessness—Housing Act 1996,
section 193. Where a LHA discharges its duty via the provision
of an assured tenancy by an RSL or other private landlord, the
subsequent assured tenancy will not be protected by the HRA under
the current definition of performing a public function. However,
if the section 193 duty were to be discharged by the provision
of LHA accommodation under Part 6 (ie allocation), the subsequent
tenancy would be covered.
(b) Allocations—LSVTs. Where
a LHA retains control of the allocation scheme and allocates accommodation
from its own stock, the HRA is engaged. However, where the LHA
retains control of the allocation scheme and nominates applicants
to RSL/HA property, case law suggests that the subsequent RSL/HA
tenancy would not be covered by HRA. Where there is a partial
LSVT, those under LHA tenancies will have the protection of the
Act and those who apply for housing after the LSVT will have HRA
protection if allocated LHA accommodation, but probably would
not have it if allocated RSL accommodation.
This dependence on who is the landlord and the
relationship the landlord has with the relevant statutory body
is limiting tenants' access to legal remedies enjoyed by other
tenants of social rented housing. As HAs and RSLs become the major
provider of social housing, this will mean that an increasing
number of people will fall outside of the HRA with regards to
their housing.
It is established law that RSLs and HAs cannot
be subject to judicial review. In the absence of HRA protection,
tenants of RSLs and HAs have little protection against indiscriminate,
unreasonable or disproportionate actions by their landlords. This
again may be illustrated by several examples:
(a) Probationary tenancies. Many
RSLs grant assured shorthold tenancies in the same way that LHAs
grant introductory tenancies. However, there is no statutory right
of review or availability of judicial review to RSL probationary
tenants, as there is with LHA introductory tenants. As such, if
eviction proceedings under section 21 HA 1996 were brought by
the RSL, the tenant would have no defence. This would apply even
if the proceedings had been brought based on false allegations,
erroneous information, delays on the part of housing benefit,
personal grievance against the tenant by the housing officer because
section 21 is a "no fault, groundless" process.
(b) Use of Ground 8 in standard possession
claims. Ground 8 is a mandatory ground for possession under Schedule
2 of the Housing Act 1988 and is founded upon rent arrears. If
the ground is proved, the court must grant possession. The use
of this ground is retained and used by a number of RSLs and HAs—in
some cases being used where the rent arrears are caused by Housing
Benefit delays. A recent survey of RSLs carried out by the National
Housing Federation shows that 16.5 per cent of possession proceedings
are sought on this ground. The right to apply the HRA in such
circumstances would ensure that decisions by RSLs/HAs to rely
on Ground 8 were proportionate and in pursuit of a legitimate
aim.
(c) RSL powers to obtain ASBOs. These powers
have a clear impact upon the individual's home and civil liberties,
but although these measures are obtained via the courts, RSL tenants
are denied the right to raise the HRA in their defence—unlike
LHA tenants.
(d) RSL/HA policies on transfers and allocations.
Most RSLs/HAs have internal policies. Whilst failure to follow
that policy could result in a referral to the Housing Ombudsman
or Housing Corporation, there is little judicial control over
the contents of the policy or how discretions within it are exercised.
What steps, if any, should be taken to address
potential gaps in HRA protection and accountability, following
the Leonard Cheshire case?
Shelter continues to hold the position that
the most effective means of securing human rights protection would
be to make it clear in statute that RSLs/HAs are independent law
bodies, but that certain of their functions are of a public nature
and therefore subject to the HRA. These functions are:
(a) the management of housing developed with
public subsidy or housing previously owned by a LHA
(b) the provision of services that discharge
functions of a LHA or social services authority.
The inclusion of RSLs/HAs in relation to these
particular roles as public bodies within s 6 of the HRA would
require all social landlords to comply in particular with Articles
6, 14 and Article 1 of the First Protocol.
Such a step would ensure greater consistency
and clarity than is currently available and make it possible to
distinguish the activities of bodies that fall within the private
law realm (the acquisition of land, building works, development,
for example) and public law (for instance, the management of rented
accommodation, assisting LHAs with homelessness functions and
social services authorities). As stated above, case law has established
that it is possible to be a private body, coming under the definition
of a public body in respect of certain functions. As such, RSLs
and HAs could retain their private law status in respect of non-housing
management functions, especially in relation to their ability
to raise private finance.
Failing the amendment of legislation, a more
authoritative statement on the circumstances where a private body,
such as an RSL or HA undertaking public functions, is acting in
a way in which engages the HRA, is required. This could take the
form of either ministerial guidance or a clear and strong statement
from the Secretary of State outlining the conditions under which
RSLs and HAs are to be considered public bodies and under which
they are not.
In addition to this, Shelter supports the general
principle that tenants of social landlords should have same rights
and responsibilities regardless of the status of the landlord
as RSL or LA. Therefore, where an RSL or HA is undertaking housing
management functions in respect of their own tenants (irrespective
of how those tenants came to be in RSL or HA owned and controlled
property), or assisting LHAs in their homelessness and allocation
functions, or is a contractor of the LHA in respect of their homelessness
or allocations functions, it is Shelter's view that they should
be deemed to be `public authorities' for the purposes of the HRA.
Taking this step would bring several benefits.
Firstly, it would provide individuals with easier access to the
HRA. It also better reflects the role of RSLs and HAs in the social
housing sector. It acts to remove doubt and uncertainty over the
interaction between the LHA and RSL/HA functions, whilst also
helping to eradicate the anomaly of some social tenants having
protection, whilst others do not.
Could alternative means, apart from section 6(3)(b)
(eg contractual terms) effectively fill any potential gaps in
human rights protection?
Shelter believes that there is a case for considering
the incorporation into tenancy agreements of the wording of Article
8 of HRA. This would make any such contract HRA-compliant and
any breach of it therefore a breach of contract.
Whilst contractual terms could be useful in
respect of non-RSL/HA landlords (including other charitable landlords),
in Shelter's view they would not be a preferred option for RSLs
and HAs. A potential problem with contractual terms—and
other voluntary measures for protecting HRA rights—lies
in the inherently imbalanced bargaining position of landlord and
tenant. We would have concerns about how many landlords would
be expected to include such terms or provisions into a tenancy
agreement and, conversely, how many tenants would complain if
they were omitted. In addition to this, any voluntary scheme tends
to suffer from regional variation and a lack of effective control
and regulation. Protection under the HRA in respect of RSLs/HAs
is too important an issue to leave to a voluntary scheme—whether
its contractual terms or HRA-friendly policies.
30 April 2003
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