Equality and Human Rights Commission Guidance Human · PDF fileEquality and Human Rights...

Equality and Human Rights CommissionGuidance

Guidance for social housingproviders

Humanrights athome:

1

Foreword 2

Introduction 5

1. What are human rights and where do they come from? 8

2. How does the Human Rights Act work? 9

3. Which organisations are subject to the Human Rights Act? 11

4. Which human rights are protected by the Human Rights Act? 13

5. What does the Human Rights Act mean for social housing providers, in practice? 15Allocation of housing 16The terms of tenancy agreements 19Housing conditions: Repairs and maintenance 21Aids and adaptations 21Environmental impact 22Rent arrears and other breaches of tenancy conditions 23Anti-social behaviour 24Relationship breakdown 26Death and succession 27Buying the home 29Specialist housing accommodation and specialist housing services 29Long leaseholders 30Change of landlord 30Termination of tenancy and eviction 31Social housing providers in Scotland 32

6. How to make decisions which comply with the Human Rights Act 34

7. Is my organisation subject to other rules which affect public authorities? 39

Appendix 1: The Convention Rights 41Appendix 2: Glossary 44Appendix 3: The Commission: Who we are and how we

can help 46Appendix 4: Find out more 47Appendix 5: Advisory group members 48

Contents

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Human rights at home: Guidance for social housing providers

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Human rights have special significance in relation to social housing. Quality of housing can have a huge impact on wellbeing. Inadequate housingincreases the risk of severe ill health and disability; it can also lead to poor mental health, lowereducational attainment, unemployment and poverty.The importance of housing is recognised in theUnited Nations Covenant on Economic, Social andCultural Rights, which includes ‘the right of everyoneto an adequate standard of living for himself and hisfamily, including adequate ... housing’. The UnitedKingdom is legally bound by this treaty. Protectingpeople’s human rights in housing is thereforeimportant in its own right.

Foreword

If you work in social housing, this guide isfor you. Poor housing can affect a person’shealth, work, education, relationships and life chances, which is why the right to respect for a person’s home is in theHuman Rights Act. By providing socialhousing in a way that is compatible withhuman rights laws, your organisation canmake a positive difference to people’s lives.

There have been a number of recent casesin British courts as well as the EuropeanCourt of Human Rights concerning thehousing rights of individuals. This can beconfusing for social housing providers, soas we learn more about what human rightsmean for tenants and their landlords, wewant to help you get it right.

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This guidance is intended to be a practicaltool, to build your understanding andconfidence in your ability to spot and dealwith human rights issues. It providesexamples of how human rights can berelevant throughout the housing journeyfrom allocation to the termination of atenancy. It also provides a checklist to help social housing providers review their policies and practices for humanrights compatibility and address any issues effectively.

The Equality and Human RightsCommission (the Commission) hasdeveloped this guidance in closeconsultation with key stakeholders in the social housing sector across Britain.We would like to express our thanks to the advisory group for their invaluablehelp. We hope you will find it useful, andwe look forward to working with you tobring human rights into the homes of your tenants.

Kay Carberry and ProfessorGeraldine Van Bueren,Commissioners


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Who is this guidance for and what will it tell you?

This guidance is intended to help those who work for social housing providers, such as housingassociations or local authorities, to comply with the Human Rights Act 1998 (the HRA or the Act).1

Introduction

This guidance should:

help you to understand how the HRAworks and the rights it protects

help you to work out whether yourorganisation is subject to the HRA

help you to make sure you and yourorganisation comply with the HRAwhen providing social housing, and

provide you and your organisation withgood practice examples to help youidentify potential human rights issuesand take appropriate action.

This guidance is not:

a complete guide to all housing law and regulation. It should be used tosupplement other housing guidanceand codes of practice

an exhaustive explanation of the HRA.It should not be used as a substitute forlegal advice

intended to help you fulfil yourobligations under laws abouthomelessness or to determine housing needs

designed for private landlords. But they may wish to refer to this guide for examples of good practice, or

guidance in relation to social housingproviders’ obligations under theEquality Act 2010. Your organisationwill have obligations under that Act.The Commission’s guidance on theEquality Act is available on its website.

1 Social housing providers which contract out the management of their housing stockto, for example, an ALMO (arm’s length management organisation), should alsoensure that this guidance is brought to the attention of that organisation.


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This guidance is designed fororganisations operating in England,Scotland and Wales. Where the relevantlaw is different in Scotland or Wales, thishas been indicated in the text orfootnotes. There is also a section inChapter 5 which relates specifically tothose organisations operating inScotland. In summary, while both theScottish Parliament and the WelshAssembly have the power to make lawsrelating to social housing, those lawsmust be compatible with the rightsprotected in the HRA. In addition, theHRA applies to all of the UnitedKingdom, so if a social housing providercarries out ‘public functions’ in providingsocial housing, it must comply with theHRA in doing so, wherever it operates inthe UK.

The next part of this guidance explainswhy it is important to comply with theHRA. An explanation of what humanrights are can be found in Chapter 1 andChapter 2 explains how the HRA works.Chapter 3 should help you work outwhether your organisation is subject tothe HRA. A brief summary of those rightswhich are most likely to be relevant tosocial housing is set out in Chapter 4. Theother rights contained in the HRA aredescribed in Appendix 1. Chapter 5 givessome specific guidance on how the HRAis likely to affect your work in providingsocial housing. Chapter 6 provides someguidance on how to make decisionswhich comply with the HRA. The finalpart, Chapter 7, discusses otherimplications of being subject to the HRA.Appendices 2, 3, 4 and 5 contain aglossary, information about the Equality

and Human Rights Commission anddetails of where to find further help andthe advisory group members.

Why comply with the HumanRights Act?

It is important for society that socialhousing is provided in a way which iscompatible with human rights. Humanrights are about treating people withdignity and respect. These values shouldbe basic standards for any public service.Human rights have special significance inrelation to social housing. Quality ofhousing can have a huge impact onwellbeing. Inadequate housing increasesthe risk of severe ill health and disability;it can also lead to poor mental health,lower educational attainment,unemployment and poverty.2 Theimportance of housing is recognised inthe United Nations Covenant onEconomic, Social and Cultural Rights,which includes ‘the right of everyone toan adequate standard of living for himselfand his family, including adequate ...housing’. Protecting people’s humanrights in housing is therefore importantin its own right.

Taking human rights into account whendesigning and delivering your services isalso good for business. It is likely toimprove the quality of your service andimprove your organisation’s reputation.Making sure you comply with humanrights can also improve yourorganisation’s performance duringinspection and regulation. For example,you may be unable to meet the standardsset by the relevant regulator relating toquality of accommodation, maintenance

2 Lisa Harker, Chance of a Lifetime, Shelter, September 2006, p8.

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and tenure if you breach human rights indelivering these aspects of your service.Chapter 5 tells you how human rightsrelate to these areas of your work.

Some social housing providers are alsorequired by law to comply with the HRA.Therefore, it is important for legal reasonsthat your organisation’s policies andpractices, and the way in which it deliversits services, respect human rights. If yourorganisation fails to comply with itsobligations under the HRA it mayexperience:

customer complaints

criticism from the relevant regulator

legal proceedings initiated by yourcustomers or other affected people,and/or

scrutiny by the Equality and HumanRights Commission.

If your organisation complies with theHRA, it will avoid these difficulties and be able to concentrate on delivering itscore business.




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After World War 2, in order to ensure thatthe atrocities which occurred during the warwould never be repeated, nations agreed thateveryone would enjoy basic rights, like theright to life and the right to be free fromtorture. These agreements are like contractsand are called international ‘treaties’ or‘conventions’.3 They contain standards thateach State must comply with, setting out thebasic levels of treatment that all individualsdeserve because they are human.

The UK is signed up to a treaty called theEuropean Convention on Human Rights(ECHR). The Convention is made up of

articles which set out the human rightsprotected. If a person thinks that theirhuman rights have been breached by a Statewhich is a party to the ECHR (and satisfiescertain conditions), he or she can take a caseto the European Court of Human Rights(ECtHR).

The HRA makes most of the rights in theECHR part of our own law in the UK. Itallows people to take cases to a court in theUK about the human rights contained in theECHR. It also makes sure that those humanrights are protected in the UK in a number ofother ways. These are explained in Chapter 2.

1. What are human rights and where do they come from?

Human rights are the basic rights and freedoms thatbelong to everyone. They mean that everyone shouldbe treated fairly, with dignity and respect. Britain hasa long history of protecting human rights and thesevalues have been central to our democratic system for many years.

3 Several human rights treaties have been agreed by members of the United Nations. Bybecoming a party to these treaties the UK agreed to protect additional human rights, but itis not possible to bring cases in relation to these treaties in UK courts. The main ones arethe International Covenant on Economic, Social and Cultural Rights , the InternationalCovenant on Civil and Political Rights, the Convention on the Elimination of All Forms ofRacial Discrimination, the Convention on the Elimination of All Forms of Discriminationagainst Women, the Convention against Torture and Other Cruel, Inhuman or DegradingTreatment or Punishment, the Convention on the Rights of the Child and the Conventionon the Rights of Persons with Disabilities.

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2. How does the Human Rights Act (HRA) work?

There are 16 rights in the HRA, which are all takenfrom the ECHR. For this reason, they are referred toas the Convention Rights.

The HRA requires all public authorities(such as central government departments,local authorities and NHS Trusts andBoards, as well as the devolvedadministrations) and other bodiesperforming public functions (such asprivate companies operating prisons andsome housing associations) to treat peoplein accordance with the Convention Rights,unless required by an Act of theWestminster Parliament to do somethingincompatible with the Convention Rights.These organisations can also have a dutyto stop other people or companies fromabusing human rights in certainsituations. For example, where a publicauthority knows that a child is beingabused by its parents it has a duty to takesteps to protect the child from inhuman ordegrading treatment.

If an individual thinks their human rightshave been breached by a public authorityor someone carrying out a public function,they can take a court case in the UK courts against the body that appears tohave breached them. This means that ifyour organisation is subject to the HRA,you must think about how your workmight affect people’s human rights. This is important both when you aredesigning your organisation’s policies and

practices and when you are delivering yourservice to the public. Chapter 5 explainshow the way in which you treat people inproviding social housing could affect theirhuman rights.

The HRA also says that, as far as possible,other laws should be interpreted in a waywhich does not breach the ConventionRights. So courts may ‘read into’ thelegislation a meaning that is compatiblewith human rights, even if the law doesnot seem to have that meaning at firstsight. This means that when a law requiresyou to do something, you should interpretthe requirement in a way which iscompatible with the human rights in theHRA unless it is not possible to do so.

In considering questions about humanrights, the courts must ‘take into account’any decisions made by the ECtHR if itthinks they are relevant. UK courts are notrequired to make the same decisions asthe ECtHR.

If a court or tribunal is considering a lawwhich was made by the WestminsterParliament and it is not possible tointerpret it in a way which would becompatible with human rights, the courtwill make a ‘declaration of


Working Better Guidance

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incompatibility’. This does not change thelaw or stop it being applied. Governmentand Parliament then decide whether andwhen to amend the law in question. If acourt or tribunal is considering legislationpassed by the Scottish Parliament or theWelsh Assembly in a case and cannotinterpret it in a way which is compatiblewith human rights, it may decide that that law, or a particular section of that law,is invalid.

When the Westminster governmentpresents a proposal to Parliament that itwould like to become law, the Ministerwho is in charge of the law must make astatement, called the statement ofcompatibility. This statement must eithersay that in the Minister’s opinion the

proposed law is compatible with theConvention Rights, or that it isincompatible with the Convention Rightsbut the government wishes to go aheadand make the law. This does not changethe law or stop it being made or applied. Itis intended to encourage the governmentto think about the effect the law will haveon human rights.

In Scotland, the relevant Minister and thePresiding Officer must make statements ofcompatibility. They cannot make astatement of incompatibility because alllegislation passed by the ScottishParliament must comply with humanrights and may be invalidated by a court ifit does not.

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3. Which organisations aresubject to the HRA?

The HRA says it is unlawful for a public authority to act in a way which is incompatible with theConvention Rights unless required to do so by an Actof Parliament. Local authorities are public authoritiesand will have to comply with the HRA in everythingthey do, including when acting as a social landlord orin allocating or disposing of housing stock. The HRAalso says that when other organisations which are notpublic authorities carry out public functions they mustcomply with the Convention Rights in doing so.

Recently, the Court of Appeal decided thata housing association was performingpublic functions when allocating andmanaging social housing.4 The associationwas therefore required to respect tenants’human rights in doing so. The court’sdecision was based on the following factors:

the housing association’s work wassubsidised by the State

the housing association was grantedspecial intrusive powers by law, such asthe power to apply for an anti-socialbehaviour order

the housing association was workingclosely with local government to helpthe local authority achieve its dutiesunder the law, and

the housing association was providing a public service of a type which thegovernment would normally provide. That is, providing housing at belowmarket rents.

The court made clear that its decision only related to the particular housingassociation under consideration in thecase. However, other housing associationswhich operate in similar circumstances are also likely to be subject to the HRA.5

If you are not sure whether yourorganisation is likely to be subject to theHRA, it is advisable, both to avoid the riskof a claim being brought against you and as a matter of good practice, that you carryout your business in a way which complieswith the Convention Rights.

4 R (Weaver) v London & Quadrant Housing Trust [2009] EWCA Civ 587; [2010] 1WLR 363; [2009] HLR 40, CA.

5 See, for example, Eastlands Home Partnership Ltd v White [2010] EWHC 695 (QB);and R (McIntyre) v Gentoo Group Ltd [2010] EWHC 5 (Admin).


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There are 16 rights in the HRA. Everyone has theserights, regardless of their immigration status orcitizenship. The rights contained in Articles 6, 8 and 14 are those which are most likely to be relevantto your work in social housing. These rights areexplained briefly below. Appendix 1 contains a brief explanation of the other Convention Rights.Chapter 5 explains how these might relate to yourwork in social housing.

4. Which human rights areprotected by the HRA?

The HRA recognises the need to protectthe rights of the wider community whileprotecting each individual’s humanrights. There are three types of right:

Absolute rights: These cannot bebreached or restricted under anycircumstances.

Limited rights: These can be limited inthe particular circumstances set out ineach Article.

Qualified rights: These can be limitedto the extent necessary to achievecertain important objectives, likeprotecting public health, or security.This allows a balance between theright of the individual and the interests of the community. But anyrestriction on an individual’s humanrights must be permitted by law andmust be no greater than necessary toachieve the objective. The idea thatany interference with a qualified

right must not be excessive in thecircumstances is known as‘proportionality’.

We explain below and in Appendix 1whether and how each right can berestricted.

Article 6: Right to a fair trial

Article 6 is an absolute right. Everyonehas the right to a fair and public hearing,before an independent and impartialtribunal, within a reasonable time. Thisright applies where someone’s privaterights are at stake, such as in contractualor property disputes. It also applies tocriminal trials. The right to a fair hearingmeans, broadly, that a person should begiven the opportunity to participateeffectively in any hearing of their case,and to present their case in conditionswhich do not place them at a substantialdisadvantage when compared with the



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other party in the case. For example, aperson who is subject to a decision-making process in relation to a possibleeviction should have access to aninterpreter, if necessary. Decisions shouldbe given with reasons. Article 6 is likely tobe particularly relevant in review or appealproceedings which would determine atenant’s rights. However, it may not benecessary for decision-making to fulfil allthe conditions of a ‘fair hearing’ if a personhas access to a subsequent appeal processwhich would satisfy these requirements.

Article 8: Right to respect forprivate life, family life and the home

Everyone has the right to respect for theirprivate and family life and also the right torespect for their home andcorrespondence. ‘Private life’ has a verywide meaning. People should be able tolive in privacy and be able to live their lifein the way that they choose. Theirpersonal information should be keptprivate and confidential. The right torespect for a person’s home is not a rightto housing, but is a person’s right to accessand live in their home without intrusion orinterference. The right to respect forfamily life includes the right for a family tolive together. You should take positivesteps to prevent other people seriouslyundermining a person’s home or privatelife, for example, through serious pollutionor anti-social behaviour.

Article 8 is a qualified right. This meansthat you cannot interfere with the right,for example by forcing people to leavetheir homes, unless you are acting in theinterests of national security, publicsafety or the economic wellbeing of thecountry, for the prevention of disorderor crime, for the protection of health ormorals, or for the protection of therights and freedoms of others. You mustbe acting in accordance with the law andthere must be no less intrusive way ofachieving your objective.

Article 14: Prohibition ofdiscrimination

This means that everyone must haveequal access to the other rightscontained in the HRA, regardless oftheir race, religion, gender, sexualorientation, disability, political views orany other personal characteristic. Forexample, the HRA means that a gaycouple has to be treated in the sameways as a heterosexual couple in relationto the right to succeed to a tenancy. Inorder to gain protection under Article14, the treatment complained of mustrelate to one of the other ConventionRights, but it need not amount to abreach of that other right. Article 14 is aqualified right. A difference in treatmentcan only be justified if there is a goodreason for the treatment and if it isproportionate in the light of that reason.Article 14 does not list the ‘legitimatereasons’ which would justify a differencein treatment.

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does not normally give anyone a rightto a home or to any particular form ofaccommodation6; it contains a right torespect for a home that a personalready has

does not contain an absolute right.Even accommodation that has been aperson’s home for all of their life canbe taken away in the circumstancesprovided for by the Article itself. TheArticle stipulates that the right to‘respect’ can be qualified by lawfulaction taken by a public authoritywhich is in pursuit of a prescribed

Three of the Convention Rights have aparticular role to play in the context ofsocial housing. They are Article 6 (theright to a fair determination of civilrights), Article 8 (which includes the rightto respect for a home), and Article 14(enjoyment of the Convention Rightswithout discrimination).

These Articles are each outlined inChapter 4 but it is particularly importantto emphasise that Article 8 and inparticular the right it contains to ‘respect’for a home which might be thoughtapplicable in most housing situations:

Those social housing providers which are subject tothe HRA will need to ensure that they comply withthe Convention Rights (described in Chapter 4 andAppendix 1) whenever they deal with an applicant for housing, or a tenant, or any other occupier or, insome circumstances, a former resident. This part ofthe guidance looks at how the HRA may impact on asocial housing provider’s services from allocation ofaccommodation, at one end of the spectrum, totermination and eviction at the other.

5. What does the HRAmean for social housingproviders, in practice?

6 Chapman v United Kingdom (2001) 10 BHRR 48 at [99].



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legitimate aim,7 is necessary, and isproportionately taken, and

only applies to something properly called a ‘home’. That term may notembrace very short term accommodationsuch as a hotel room8 or transientaccommodation such as an unauthorisedencampment onto which a Traveller hasrecently moved.9

Allocation of housing

The HRA does not give anyone a right to theprovision of a home from a particular socialhousing provider. In some circumstances,the Convention Rights would require theUK to provide shelter for those who are sovulnerable that they would not receiverespect for their family life or private life ifthey were left on the streets (perhaps byreason of their disability or destitution10),but the HRA does not impose an obligationon any individual social housing provider todo so. Social housing providers’ obligationsto make housing available are to be found inthe ordinary housing legislation dealing

with allocation of social housing andhomelessness and in the relevant regulatory requirements.

Example:11 An applicant householdcomplains that they have been registeredwith a social housing provider as needinga three-bedroom home with a garden inplace of their current small flat. Theyhave been waiting six years and still nosuitable accommodation has beenoffered to them. No Convention Right isinvolved here. There is no right to ahome in the Human Rights Act. There isno human right to a garden.

However, in schemes for managingapplications for housing, social housingproviders will need to avoid unjustifieddiscrimination (which may be contrary toArticle 14) and procedural unfairness(which may be contrary to Article 6). Inparticular, rules which unjustifiablydiscriminate between housing applicants ongrounds such as marital status, age, gender,disability or nationality12 may amount to

7 The legitimate aims prescribed in Article 8 are ‘the interests of national security, publicsafety 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’.

8 O’Rourke v UK (26 June 2001, Application No 39022/97) ECtHR.

9 Leeds City Council v Price [2006] UKHL 10, [2006] 2 AC 465, HL and Hounslow LBC v Powell [2011] UKSC8 [33], SC.

10 Marzari v Italy [1999] 28 EHRR CD 175 and Secretary of State for the HomeDepartment v Limbuela & Ors [2005] UKHL 66, HL.

11 Throughout this part of the guidance we use examples to illustrate how the immediatelypreceding text might be understood and applied. In some cases the examples are looselybased on previous decisions of the courts but the majority simply represent theCommission’s guidance on how the Human Rights Act might apply to specific factualsituations.

12 Though where a social housing provider is required by law to differentiate betweenapplicants on the basis of nationality, it would not breach the Human Rights Act indoing so.

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unlawful discrimination under domesticequality legislation and also breach theConvention Rights protected by the HRA.13

Most social housing providers will havetheir own rules about the allocation of theirhousing. For local housing authorities,some of the rules are imposed by legislation(for example, that applicants of a particularimmigration status are not eligible). Even ifthe application of such a statutory ruleinfringes a Convention Right, the localauthority will not be acting unlawfully inapplying it because it had no alternativebut to comply with the statute.14 On theother hand, if a social housing providerdecides to adopt for itself a rule abouteligibility for allocation of social housing,which does not have a legitimate aim or isnot proportionate, this may be a breach ofArticle 14.

Example: A social housing providerhas an allocation scheme under whichonly married couples or couples in civilpartnerships can be considered for jointtenancies. Such a scheme may amountto an unlawful breach of Article 14unless the housing provider can justifyits failure to allocate joint tenancies tounmarried couples or other pairs ofapplicants. While decisions aboutallocations cannot amount to a breach

of Article 8, a tenant could bring a claimin relation to Article 14 because thetreatment falls within the ambit ofArticle 8.15

Example: Another provider requiresall applicants to renew their applicationsannually by completing a form inhandwriting, signing it and attendingfor interview at the provider’s offices.That provider will need to take steps toensure that it has built-in sufficientflexibility to deal with renewals by thosefor whom English is not a first language(including those whose first language isBritish Sign Language), or are unable toread or write, or who have a visualimpairment, or other disability thatmakes completion of the form orattendance at the provider’s officesunreasonably difficult.

Example: A group of social housingproviders operate a choice-based lettingssystem which involves properties beingadvertised online. The providers willneed to ensure that the online materialsare available in accessible formats andthat arrangements are in place for thoseapplicants without computer access toget information, in accessible formats,about properties and how to bid forthem.16

13 See the homelessness cases in which nationality has had an adverse impact on theassistance available: Husenatu Bah v The United Kingdom – 56328/07 [2006] ECHR2060 (1 December 2009) following Westminster City Council v Morris [2005] EWCACiv 1184, [2006] 1 WLR 505.

14 See Westminster City Council v Morris [2005] EWCA Civ 1184, [2006] 1 WLR 505, CA.

15 See Rodriguez v Gibraltar [2009] UKPC 52; [2010] UKHRR 144, PC.

16 See Choice-based Lettings, Potentially Disadvantaged Groups and Accessible HousingRegisters and Costs and Effectiveness of Accessible Housing Registers in a Choice-based Lettings Context (both from Department for Communities and LocalGovernment, February 2011).

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Until an applicant actually signs up for atenancy, they do not have a ‘civil right’ toany accommodation.17 For this reason,provisions in Article 6 about the fairhearing of disputes about civil rights areunlikely to apply to the application andallocation stage. However, this maypossibly change in the future.18

Increasingly, the ECtHR has found thatthe rights to ‘social benefits’ are civil rightsand that decisions about these benefitsmust comply with the requirements ofArticle 6. It may therefore be prudent forsocial housing providers to ensure that notonly are applicants given notice of adversedecisions in writing but perhaps also thatthey are supplied with written reasons forthose decisions. Likewise, disappointedapplicants might sensibly be told how theprovider’s decision might be challengedand where independent advice can beobtained locally. For general guidance onprocedural steps which can avoidinfringement of Convention Rights seeChapter 6.

The terms of tenancy agreements

Ordinarily, the social housing providerand the tenant will be free to agree,subject to any law requiring otherwise, theterms and conditions under which thehome is to be occupied. There is no humanright to a particular level of rent or to theinclusion of particular ‘rights’ in a tenancyagreement. However, care must be takento ensure that the wording of tenancy

conditions – or the enforcement of thoseconditions – does not breach theConvention Rights.

The intentions of both the social housingprovider and the occupier will usually bethat the accommodation will be thetenant’s ‘home’. The right to respect for ahome protected by Article 8 means thatthe terms under which theaccommodation is provided should allowan individual to enjoy his or her home inthe normal way.

Example: The tenancy terms onwhich a social housing provider hasmade accommodation availableprovide that the tenant cannot sharethe home with adults other than thosenamed as ‘authorised occupants’ on thetenancy agreement. If such a term wereused to prevent the tenant from havingmembers of his or her family livingwith them that might well interferewith Article 8 rights.19

Example: Another provider’s termsrequire the occupier (1) to be in thehome at 9pm each evening and (2) topermit the provider’s staff to enter ondemand. Such terms are unlikely toshow proper ‘respect’ for the occupier’shome and would represent an unlawfulbreach of Article 8 unless shown to beincluded for a legitimate reason and tobe proportionate (for example, becausethe provider is supplying specialist

17 See Dixon v Wandsworth LBC [2008] EWCA Civ 595 at [11].

18 For example, the ECtHR is presently considering an application made by theunsuccessful appellants in Tomlinson v Birmingham CC [2010] 2 All ER 175, [2010] 2WLR 471, [2010] HRLR 18, [2010] PTSR 524, [2010] UKHRR 417, [2010] UKSC 8 whowere seeking to rely on the application of Article 6 to their homelessness applications.

19 OPAC (Office public d'habitations de la Ville de Paris) v Yedei [1996] Cour de Cassation(3eme Chambre, Civil) 6 March 1996.



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accommodation to a particularlyvulnerable set of residents in anintensively supported housingscheme).20

Example: Another provider’s tenancyconditions provide that no animal is tobe kept in or on the premises. Thetenant wishes to keep a dog as acompanion. There is no human right tokeep a pet or to have an animalcompanion.21 The provider would berequired to allow tenants to keep guidedogs or hearing dogs in the property, asa reasonable adjustment to this policy,to avoid breaching Article 14. Incontrast, if residents already have petsand the provider introduces a new ‘nopets’ policy requiring existing pets to beremoved, that might demonstrate aninterference with the resident’s right to‘respect’ for their home, which the socialhousing provider would have to showwas a proportionate way of achievingone of the aims in Article 8.

There is no human right to stay in aparticular home for any particular length of time, or to enjoy any particular form ofsecurity of tenure. The social housingprovider and the tenant will be free toagree, subject to any law providingotherwise and to any regulatory framework,how long a particular tenancy or other form of occupation will last. However, thehuman right to respect for a home in Article

8 can be relevant if the social housingprovider seeks to terminate a tenancybefore the period for which it might havebeen expected to run.

Example: A social housing providerencourages an elderly resident torelocate to new accommodation ongiving an express indication that shecan remain in her new home ‘for therest of your life’. If the provider thensome years later decides to displace theresident again, to yet another unit ofaccommodation, the resident may wellassert that there has been an unlawfulfailure to afford her ‘respect’ for herhome under Article 8.22

The terms and conditions of the tenancy,or their enforcement, may give rise toissues under other Convention Rights.

Example: A social housing provider’sstandard terms of tenancy prevent theerection of any satellite dish or aerialon the exterior of the home. A disabledtenant is only able to engage in herparticular religious community if she isable to receive transmissions of specificreligious services held overseas whichare exclusively available by satellite.The term of the tenancy agreement,and most particularly its enforcement,may amount to an unlawful breach ofher human right to freedom of religionunder Article 9 (see Appendix 1).23

20See Orejudos v Royal Borough of Kensington & Chelsea [2003] EWCA Civ 1967 inwhich the issue was raised of whether a requirement to ‘sign in’ daily at a hostel wascompatible with Article 8.

21 Artingstoll v United Kingdom (1995) 19 EHRR CD 92.

22 See R (on the application of Coughlan) v North & East Devon Health Authority [1999]EWCA Civ 1871, [2001] QB 213, CA.

23 See Khurshid Mustafa and Ttarzibachi v Sweden Application No. 23883/06 [2008]ECHR 1710.

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Example: An older disabled personwho has an assistance dog lives inretirement accommodation. Through itstenancy agreement, the housingprovider prohibits anyone living in itsaccommodation from keeping an animalin the property. The enforcement of thistenancy term may amount to anunlawful breach of Article 14.

Housing conditions: Repairs andmaintenance

Social housing providers will be subject tothe ordinary regulatory, statutory andcontractual obligations to repair ormaintain the home supplied. There is nohuman right to a home of a particularquality. So, for example, there is no humanright to central heating, double glazing,fitted kitchens and the like. Even themodern notion of a ‘decent’ home, which isthe regulatory standard required of socialhousing providers, does not rest on anyhuman rights. However, the courts haverecognised that in some situations housingconditions may be so bad – or become sobad – as to interfere with a tenant’s human rights.24

Example: The structural integrity of aproperty becomes so bad that thetenant cannot have a stairlift fittedsafely to enable him to remain in hishome and has to leave. This is likely tobe a breach of his Article 8 rights.

The human right to freedom frominhuman or degrading treatment (Article 3

see Appendix 1) would be relevant where ahome in appalling condition is provided toan occupier who had had no choice but totake it. Short of that, something seriouslywrong would need to occur before a sociallandlord’s failure to repair or maintainwould lead to a breach of other humanrights (for example, under Article 8).25

Example: A growing family, includingyoung children, live in a cramped andovercrowded social housing property. Byreason of lack of adequate heating andventilation systems there is extensivecondensation dampness causing illness.An intermittent fault in the water supplyto the block of flats means that they arealso often without hot water in theevenings. The parents decide that theyneed to send the children away to livewith other relatives to safeguard theirhealth and hygiene. This is likely toamount to a breach of the Article 8 rightto respect for private and family lifeand/or an interference with the right torespect for the home. That is because itwould be unlikely that this ‘treatment’ ofthe family could be objectively justifiedeven if the housing provider had noobligation to deal with the situationunder the tenancy agreement or housing legislation.

Aids and adaptations

Social housing providers, especially localauthorities, are likely to be subject tostatutory or regulatory obligations toprovide certain aids to tenants, or permit

24 R (Bernard) v Enfield LBC [2003] BLGR 423, [2003] UKHRR 148, [2003] HLR 27,[2003] HRLR 4, [2002] EWHC 2282 (Admin) and Anufrijeva v Southwark LBC[2004] QB 1124, [2004] HLR 22, [2004] HRLR 1, 15 BHRC 526, [2003] EWCA Civ1406, [2004] UKHRR 1, [2004] BLGR 184.

25 Lee v Leeds CC [2002] EWCA Civ 6, [2002] 1 WLR 1488 and Erskine, R (on theapplication of) v Lambeth [2003] EWHC 2479 (Admin).


Environmental impact

The social housing provider’s obligation toshow respect for the homes of those livingwithin its stock goes beyond a simplerequirement to restrain from unjustifiedinterference. It can also impose positiveobligations to take measures to ensurethat adverse environmental circumstancesdo not put a home, or the enjoyment of it,at risk.

Public authorities (including some socialhousing providers) will need to both: (1)ensure that the decisions they take andimplement do not adversely andunjustifiably affect the enjoyment of thehomes of local residents; and (2) takereasonable steps to protect occupiers fromadverse environmental circumstances.

Example: A local authority which isboth a social landlord and a highwaysauthority adopts a new traffic schemediverting heavy traffic from an existingcongested route down a previouslyquiet and narrow residential street. Atenant of council housing living in thatstreet, who is adversely affected by theadditional noise, dust and vibration,may well suggest that in the absence ofreasonable measures, such as trafficscreening or the installation ofsoundproof glazing, the local authorityhas interfered with his human right to‘respect’ for his home.27

Example: A housing associationdecides to improve facilities for localyoung people by converting twoadjoining ground floor flats in a block

certain adaptations to social housing, inthe interests of disabled residents.

There is no human right to the provision ofa home with particular aids or adaptationsany more than there is a right to theprovision of any home at all. However,once a person has a home then they areentitled to respect for it and to respect fortheir private lives in the enjoyment of it.The social housing provider may in somecircumstances become obliged to addressdifficulties that arise for particularresidents which prevent them fromenjoying their homes.

Example: A social housing provideragrees to supply and fit grab-rails withina tenant’s home on the recommendationof an occupational therapist (OT) thatsuch aids are essential. If the fitting hasbeen delayed for nine months (forexample, five months waiting for an OTvisit, one month waiting for the OT toproduce a report, and three monthswaiting for the fitting) that might wellamount to a failure to accord respect forthe tenant’s home.

Example: A disabled social housingtenant is increasingly unable to use thecommunal stairs. He asks forpermission to install a stairlift along thestaircase. In deciding the application,the housing provider should considerboth the interests of other users of thecommunal stairway and the particulartenant’s human right to ‘respect’ for hishome (which would include areasonable expectation to be able toreadily leave it and return to it).26


22

26 This scenario will in due course be addressed by commencement of provisions insection 36(1)(d) of the Equality Act 2010 which is not presently in force.

27 See Andrews v Reading BC [2004] EWHC 970 (QB).

23

of flats to provide a ‘youth centre’.Residents living in the flatsimmediately above the new centrecomplain of increased noise, vibrationand other nuisances caused by the usersof the centre including large numbers ofyoung people gathering in thestairwells, doorways and communalareas. This is likely to raise the questionof whether ‘respect’ has been affordedto the homes of the sitting tenants.

Example: Following a period of verysevere weather, the paths and otherwalkways on a housing estate have beenmade impassable by the accumulationof snow or the freezing of ice. Manytenants, particularly the frail elderly,are unable to leave their homes. If asocial landlord responsible formaintaining these ‘common parts’failed to take reasonable steps to grit orclear the paths that might infringe notonly the contractual obligations it hasto the tenants but possibly also theArticle 8 rights of all its residents torespect for their homes.

Rent arrears and other breaches oftenancy conditions

Nothing in the HRA relieves an occupierof social housing of their contractualobligation to pay their rent (and anyservice charges) and to comply with otherobligations of their tenancy agreement,provided that they are compatible with theConvention Rights. Nor does the Actprevent or inhibit a social landlord fromtaking sensible and proportionatemeasures to encourage or enforcepayment or other compliance. (Theextreme situation in which eviction maybe contemplated is dealt with below in thesubsection entitled Termination oftenancy and eviction.) Anti-social

behaviour is dealt with in the nextsubsection, entitled Anti-social behaviour.

Example: The policy of a socialhousing provider is that tenants withmore than four weeks’ arrears of rentwill: (1) be removed from the provider’srolling scheme for home improvements;and (2) be sued for the arrears with thedebt and court costs being recovered bydeductions from wages or benefits.Nothing in such a policy or itsapplication, so long as it is applied in areasonable way, could amount to abreach of human rights. However,displaying a large notice outside thehouse proclaiming ‘RENT DEFAULTERLIVES HERE’ might raise issues aboutinterference with the right to respect forprivacy (as an aspect of private life) orrespect for the home itself. Instead, asocial housing provider should takemore proportionate measures torecover the rent.

Example: In a bid to stem theescalation of arrears on a particularhousing estate, a social housingprovider gives the tenants’ associationon the estate the names and addressesof those owing rent. It asks theassociation’s committee members tovisit the defaulters to remind them oftheir responsibilities and to mentionthe threat of their inclusion on a ‘nameand shame’ list in the estate newsletterif arrears are not cleared. The initialdisclosure to the association is likely torepresent an infringement of the rightto privacy protected by Article 8 and thepublication of the list would certainlyamount to a breach of that right.Instead, a social housing providershould take more proportionatemeasures to recover the rent.



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Anti-social behaviour

Nothing in the HRA provides occupiers ofsocial housing with an excuse fordeliberately engaging in behaviour which isa nuisance or annoyance to others. Sociallandlords and other agencies thatproportionately take measures to addressand control such behaviour will not beinfringing any human rights. As alreadyindicated, nothing in the HRA relieves anoccupier of social housing of theircontractual obligations to comply with theconditions of their tenancy agreementprovided that they are compatible withConvention Rights.

In extreme cases, the action that a socialhousing provider takes can engage with theperpetrator’s human rights to respect forhis or her home or private and family life.But there will be no infringement of theHRA if the action taken is lawful (usuallysanctioned by a court order), is necessaryand is proportionate, having regard to theinterests mentioned in Article 8 (forexample, the need to respect the health orrights and freedoms of others).

Example: Despite warnings, a residentof social housing will not desist fromcausing serious nuisance or annoyanceto others. The housing provider obtainsan injunction but it is seriously andrepeatedly breached. The provider thenapplies for and obtains an ordercommitting the resident to prison.28

While in detention, he displays no

remorse but expressly says he will ‘get’his neighbours on his release. Thelandlord seeks an outright possessionorder which the court has a discretionwhether or not to grant. Such a scenariosuggests that the landlord is actingwithin the law and taking necessary andproportionate action.

Example: A social housing providerdecides to adopt a hard-line ‘one strikeand you are out’ policy to address anti-social behaviour. Even minor incidentsof anti-social behaviour areimmediately met by the issue ofpossession proceedings on a legal basiswhich gives the court no discretion butto make an outright order. The strictapplication of such a policy may wellresult in a human rights violation wherea disabled person engages in a form ofanti-social behaviour which is amanifestation of his or her disabilityand where there are other moreproportionate means than eviction ofdealing with the situation.29 In suchsituations, a social housing providershould consider what moreproportionate measures it can take totackle the behaviour.

Example: A tenant has a mental healthimpairment as a result of which sheengaged in anti-social behaviour andupset her neighbours by shouting andswearing at them in the street. It wouldbe disproportionate to seek a possession


28 In Scotland, the social housing provider would seek to obtain an ASBO which, ifbreached, would then lead to criminal proceedings being initiated by the procuratorfiscal.

29 See Barber v Croydon LBC [2010] EWCA Civ 51. Note that this scenario would not arisein Scotland: the effect of the Housing (Scotland) Act 2001 is to transfer all tenants ofsocial housing providers to the Scottish secure tenancy regime. There are no mandatorygrounds for eviction under the 2001 Act.

25


order immediately under the ‘one strikeand you’re out’ policy, in thesecircumstances. A more appropriate andproportionate course of action would beto consult Social Services or MentalHealth Services for advice on how bestto support the tenant in managing thisbehaviour, perhaps accessing otherservices that could help reduce the riskof more incidents.

Example: Demand for its stock is suchthat a social housing provider has had toallocate accommodation to young peoplein a development originally designed toaccommodate older tenants. Theestablished residents are alreadycomplaining that the first newcomer hada noisy (in their view) ‘new home’ partyon the night he moved in. They wantfirm and swift action taken, includingthe issue of a threat of eviction. If thesocial housing provider immediatelyissues a notice seeking possession insuch circumstances, without havingexplored what more proportionatemeasures it could have taken, that mightwell amount to a disproportionateinterference with the new tenant’s rightto ‘respect’ for his home.

The response of social housing providers toincidents of anti-social behaviour is morelikely to engage with the human rights ofvictims than with those of perpetrators.While there is no human right to expect asocial housing provider to keep a residentsafe and free from nuisance at all times, afailure to address or tackle the reportedexperience of anti-social behaviour may

well amount to a failure to respect theprivate or family life of a victim or aninfringement of his or her right to respectfor the home.30

Example: A resident complains to asocial housing provider that a group ofits tenants are making her home lifemiserable by shouting at her fromoutside her home, throwing refuse intoher garden, sitting on her front wall andplaying loud music and using foullanguage well into the night. Thelandlord knows who the perpetrators arebut decides to take no action for fear ofreprisals against its staff and given itspotential obligation for re-housing of theperpetrator family (which includes anumber of vulnerable individuals). Doing‘nothing’ in these circumstances is highlylikely to amount to a breach of thevictim’s right to respect for private life,family or home.31

At the time this guidance was being written,the ECtHR was dealing with a complaintthat the UK had failed to respect the humanrights of a family who had been subjected toappalling and violent anti-social behaviourin their home. The complaint is that theirsocial housing provider (a local housing andsocial services authority) did not respond bygranting them an urgent emergency transferwhen the risk of further harm becamecritical.32 The outcome of this case willclarify the extent of a social housingprovider’s duty to protect victims of anti-social behaviour.

30See Pemberton v Southwark LBC [2000] 2 All ER 924 at 935 (per Clarke LJ), CA.

31 See Donnelly v Northern Ireland Housing Executive [2003] NICA 55.

32 The complaint is brought by the unsuccessful claimants in X & Y v Hounslow LBC[2009] EWCA Civ 286.



26

end, without discussion with or theconsent of the other(s), is compatible withConvention Rights.33 This rule cansometimes mean that a family member isleft behind without any rights to occupywhere a departing joint tenant has givennotice to quit.34

Pending a decision on that issue, unless thesocial housing provider has improperlyinvited the giving of such a notice, it willhave no role in deciding whether theformer joint tenancy should be ended andwill have to treat the tenancy as terminatedwhen a valid notice to quit is served by oneof the joint tenants. However, in oneECtHR case, decided since the HRA waspassed, the UK was found to have actedunlawfully when a council suggested to adeparted joint tenant that she might servenotice to quit so that it could evict herformer husband who had remained in therented family home.35

If the tenancy of the family home has beenproperly terminated, the social housingprovider will need to decide whether togrant the person left behind anothertenancy (of the same or a differentproperty) or whether to seek theireviction. The notion of ‘respect for a home’in Article 8 will require the provider tocarefully consider whether it has a goodreason to seek eviction and whether it isproportionate to do so in thecircumstances.

Relationship breakdown

When there is a relationship breakdownbetween the occupiers of a rented home,the social housing landlord may wellbecome involved. If there is a real risk ofdeath or injury to one or more of thoseconcerned, there may be a positiveobligation on the social housing provider totake such action as it reasonably can toprotect the adult or child victim from thethreat of death or serious injury. Thisrelates to the Article 2 right to life (seeAppendix 1) and the Article 3 right to befree from torture, inhuman and degradingtreatment (see Appendix 1).

Unless a contractual obligation or aprovision of housing legislation isapplicable, the social housing provider isunder no obligation to provide alternativeaccommodation for a departing resident ona relationship breakdown. As alreadynoted, there is no human right to beprovided with a home nor with another oralternative home.

Often the future occupation of the rentedproperty will be regulated by the familycourts on the application of one or more ofthe parties, and the social housing providerneed only note and comply with the court’sdecision.

At the time of writing this guidance, theCourt of Appeal was waiting to considerwhether the rule which allows one of thejoint tenants to bring a joint tenancy to an

33 On appeal from Wilson v London Borough of Harrow [2010] EWHC 1574 (QB).

34 This is not the position in Scotland. If one of the joint tenants of a Scottish securetenancy serves a notice terminating his interest in the tenancy, it simply continues inthe name of the remaining joint tenants.

35 McCann v UK [2008] BLGR 474, [2009] L&TR 4, [2008] ECHR 385, [2008] HLR 40,(2008) 47 EHRR 40, ECtHR.

27


Example: A woman has voluntarilygiven notice to quit her family home andbeen re-housed with her children as aresult of serious domestic violenceperpetrated by her former partner. Hestill lives in the family-sized home, muchof which he is letting out to payinglodgers. There is a desperate need forfamily-sized accommodation in the area.In these circumstances, a claim forpossession is unlikely to bedisproportionate.

Example: A woman and her childrenhave been abandoned by her partnerwho has given a notice to quit, endingtheir joint tenancy. The social housingprovider would normally grant a newtenancy to a woman in thesecircumstances but she has some long-standing (although modest) arrearswhich are being cleared by directdeductions from her benefits. Theprovider is inclined not to grant a newtenancy until all the arrears are clearedwhich will take some years. In thesecircumstances, while a refusal to grant anew tenancy may have a legitimate aim,it is likely to be disproportionate and abreach of Article 8.

Death and succession

Following the death of a tenant, a socialhousing provider will commonly find thatother household members are left inoccupation and wish to remain in the home.For many forms of tenancy, the successionrights of those others will be set out inlegislation and will work automatically totransmit the tenancy from the deceased to asuccessor at the point of death.

If these laws about succession conflict with the HRA they will either be declared

incompatible by the courts or will beinterpreted by the courts in such a way asto avoid breaching human rights. If thecourts consider that is it not possible tointerpret these laws in a way which iscompatible with the Convention Rights anddeclares them incompatible, this will not affect landlords and tenantsimmediately. The law will remain in placeuntil Parliament changes it and willmeanwhile remain binding. If the law isinterpreted in a way which is compatiblewith the Convention Rights, social housing providers will be bound by thatinterpretation of the law.

Example: As a result of the HumanRights Act, the House of Lords decidedto interpret a statutory succession rightfor a person living as if they were the‘husband or wife’ of the deceased as onecapable of being satisfied by a memberof a same sex couple.36

Social housing providers are able tosupplement any statutory succession rightsby incorporating promises in tenancyagreements to grant new tenancies tohousehold members or carers left behindon the death of the tenant. When framingthese provisions care must obviously betaken not simply to avoid discriminationcontrary to other UK legislation but also toavoid infringing Convention Rights.

Example: A social housing provider’sstandard form tenancy agreementprovides that, on the death of thetenant, any family member left inoccupation can succeed to the tenancybut only if they are in full-timeemployment. The enforcement of thisprovision in all circumstances may be abreach of the Article 8 right to respect

36 Ghaidan v Godin-Mendoza [2004] UKHL 305 [2004] 2 AC 557, HL.



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for the home and a breach of the Article14 (see Chapter 4) right to non-discrimination in the enjoyment of theArticle 8 right, unless a social housingprovider can show that it wasproportionate to apply the provision inindividual cases.

Where a person remains in occupation withno right to succeed the deceased tenant(whether by legislation or contract), thesocial housing provider may terminate thedeceased tenant’s tenancy and seekpossession. If the accommodation hasbecome the occupier’s home, the claim forpossession will potentially be aninterference with the right to respect for a home protected by Article 8 (see Chapter 4).

At the time this guidance was beingwritten, the Court of Appeal in Englandwas waiting to hear several appeals broughtin possession cases by non-successorscomplaining that to oust them from theirhomes would infringe Article 8.37

The surest course for the social housingprovider in such circumstances is toconsider carefully whether possession isbeing sought for a good reason (as it islikely to be if the resident is under-occupying and there is a high demand forproperties of that size) and, if it is, tothoroughly examine whether it is

‘proportionate’ to evict the occupierhaving regard to, among other matters,the housing needs of other social housingapplicants and the personal circumstancesof the occupier.

Example: A social housing providerlet a family home 50 years ago to ahusband and father. On his death, thewife and mother succeeded to thetenancy. She has recently died.Remaining in occupation (with no rightto succeed) are their now adult son anddaughter who have each lived in theproperty for more than 40 years. Theproperty has one extra bedroom (thelate parents’ bedroom). The son isseverely disabled and is cared for by hissister. They want to remain in thehome and use the ‘spare bedroom’ forrespite carers when the sister takes abreak. In these circumstances aneviction of the son and daughter isunlikely to be proportionate.

Example: An elderly man has died.Until last year, he lived alone in thefour-bedroom house but some monthsago his son moved back to live withhim after his own marriage brokedown. The son is in well paid full-timeemployment and has significantcapital. He wants to become the tenant.In these circumstances, an eviction ofthe son is likely to be proportionate.38

37 For example, the appeal from R (on the application of Coombes) v Secretary of Statefor Communities & Local Government [2010] EWHC 666 (Admin), [2010] 2 All ER940, [2010] BLGR 514, QB.

38 Neither of these scenarios would be applicable in Scotland: in both cases the son and/ordaughter would have the right to succeed to the Scottish secure tenancy under therelevant succession rules contained in the Housing (Scotland) Act 2001. However, therewill be cases in which, under the Scottish legislation, occupiers are not entitled tosucceed following the death of the tenant. In that case, the issues discussed in theseexamples will have to be considered.

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Buying the home

The tenants of some social housingproviders will have the legal right to buytheir homes. Those rights will becontained in tenancy agreements or inhousing legislation. Some tenants willeven already be in the process of buyingtheir homes under low-cost home-ownership schemes.

The HRA does not supply any right to anoccupier to buy their home.39 If a tenantdoes not have the right to buy that willnormally be the result of governmentpolicy reflected in housing legislation.

Even where a landlord has a discretionarysales scheme, those outside the terms ofthe scheme cannot usually rely on theHRA to complain that they should havebeen included unless the exclusionamounts to unlawful discrimination.40

Specialist housing accommodationand specialist housing services

Most social housing providers supplygeneral needs housing accommodation.But others specialise in the provision ofaccommodation to meet housing needs forthose who are disabled, elderly or haveother particular needs for non-conventional housing. Some sociallandlords provide conventional housingbut supply specialist services to theoccupiers of that accommodation to meettheir particular needs, for example theprovision of resident warden services.

If what has been provided to an occupier isa ‘home’, they will have the usual right to

respect for their home (under Article 8 –see Chapter 4) as well as the right torespect for their private and family lives.Unsurprisingly, the need for theprotection of human rights becomes more,not less, important where individuals haveparticular needs or are unable toeffectively self-advocate.

Social housing providers supplyingspecialist housing accommodation and/orspecialist services will accordingly need toconsider particularly carefully the impacton the human rights of the occupiers ofany actions they take. That will beparticularly necessary when considerationis being given to the reconfiguration ofservices or the withdrawal of specialistschemes or services.

Example: A social housing providerdecides that in order to give it optimumoperational flexibility in managing aspecialist housing scheme it will invitecurrent residents to: (1) enter intolicences rather than tenancies; (2)agree to a provision that they can berequired to change rooms on demand;(3) acknowledge that the provision ofresidential support workers can bewithdrawn at any time. This change interms of occupancy is likely to amountto a disproportionate interference withthe residents’ human rights to respectfor their homes.

Example: A specialist provider makesaccommodation available to residentswho lack the mental capacity to enterinto contractual tenancy terms andconditions. If it decided not to make

39 Strunjak v Croatia Application No 46934/99, ECtHR.

40Delaney v Belfast Improved Housing Association [2007] NIQB 55, (2008) LegalAction November p18.



30

is an express or implied provision in everylease that it may end by forfeiture and thatwill have been a feature of the ‘possession’when the occupier acquired it.42 (In anyevent, forfeiture of residential premises isnowadays regulated by the courts.) Ofcourse, a subsequent claim for possessionmay well give rise to human rightsconsiderations (see the section entitledTermination of tenancy and eviction).

Change of landlord

It is a feature of modern life that a sittingtenant in social housing may find that theidentity of their landlord is changing. Thatmay be a change:

from one council to another (as hashappened with the recent creation ofnew unitary authorities)

from a council to a different sociallandlord (often known as ‘stocktransfer’)

from one social landlord to another(perhaps within the same group ofhousing associations), or

from a social landlord to a privatelandlord.

There is no human right to keep the samelandlord or the same form of landlord.There is no human right to always enjoythe same (or an improved) degree ofsecurity of tenure. But whoever the socialhousing provider is whether the currentlandlord or the proposed new landlord43 –it must maintain the respect for anoccupier’s home as protected by Article 8.

tenancies available to such occupiers atall it might be in breach of theirConvention Rights. It should insteadseek to ensure that the residents havethe equivalent legal protection thatwould have been available had theyenjoyed capacity, for example bygranting tenancies to others to hold ontrust for the residents.

Example: In its tenants’ handbook,but not in its contractual terms oftenancy, a social housing providerstates that it will provide a residentwarden service to residents on aparticular housing scheme. It laterdecides that the resident wardenarrangement is too costly and shouldbe replaced by an on-demand visitingservice. In deciding whether to makethis change, a social housing providerwould have to consider how this wouldaffect residents’ rights under Article 8.

Long leaseholders 41

Like any other tenancy, a long lease will bethe leaseholder’s property or ‘possession’protected by Article 1 Protocol 1 (seeAppendix 1). If they live in the propertysubject of the lease, the tenant will alsohave a right to respect for their homeunder Article 8 (see Chapter 4). Anyinterference by the social landlord withthese rights will need to satisfy the termsof the relevant Article.

The fact that a lease may be ‘forfeit’ forbreach of its terms does not represent aninterference with human rights because it

41 Note that this form of tenure does not exist in Scotland.

42 Di Palma v United Kingdom (1988) 10 EHRR 149.

43 There would be no human rights obligations on the new landlord if it were a privatelandlord.

31

Example: In the course of aconsultation exercise, tenants are toldthat if they vote in favour of a transferto a new social landlord they willretain (or obtain) particular rights orbenefits. The new landlord promisesthe old landlord that it will honour thispledge. Some years after the transfer,the new landlord finds thatcircumstances are less favourable andthat it would be inconvenient tohonour the previous commitments.The transferred tenants have no legalor contractual right to enforce thepromises made pre-transfer but mightwell assert that a failure to providethem with what they were led to expectinvolves an interference with theirright to ‘respect’ for their homes. Thesocial housing provider wouldtherefore have to show that theinterference was proportionate.

Termination of tenancy andeviction

Article 8 requires that an occupier is given‘respect’ for his or her home. Eviction isthe highest form of interference with thatright. The threat of eviction is not muchshort of it.

To avoid an eviction which is unlawfulunder the HRA, where a social housingprovider which is subject to the Act isseeking to terminate a tenancy (or otherform of occupation) and thereafter evictthe occupier, it should be able to showthat it is acting in accordance with thelaw, that its actions are in pursuit of a

legitimate aim, and that they are bothnecessary and proportionate.

For most forms of social housingtenancy, the landlord can only end thetenancy by obtaining a possession order.That system ensures that a court isinvolved, that a ground for seekingpossession is made out and (commonly)that it is reasonable to evict the occupier.

There are some circumstances in which asocial housing provider may seekpossession from the courts and the courtmay appear to have no alternative but togrant possession. This can arise in anycase where there is:

a claim for possession brought on a‘mandatory ground’ and theconditions for use of that ground aresatisfied

an assured shorthold tenancy

an introductory tenancy

a starter tenancy

a demoted tenancy

a family intervention tenancy

an unprotected tenancy

no tenancy at all

a previous tenancy which has beenterminated by the occupier, or

a licence which has been terminated.44

However, the UK Supreme Court hasrecently decided that in all these sorts ofcases when examining a possession claimwhere the point is raised, the local courts

44 The first seven points on this list are not applicable to Scotland. They may be replacedby (a) short Scottish secure tenancies and (b) tenancies at common law, which have nosecurity of tenure.




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a court can swiftly decide whether there isany substance to the occupier’s complaintof a likely infringement of their humanrights. Therefore, it would be goodpractice for providers to consider beforeeven starting the process of seeking apossession order whether the evictionwould be a justified interference with atenant’s rights.

In some cases, the court hearing thepossession claim may find that an evictionorder is justified but that immediate lossof the home would not be justified. Inthose cases the court can use its powers todelay or defer eviction for such time as itbelieves necessary to avoid aninfringement of the Convention Rights.46

Social housing providers in Scotland

The preceding material is applicable tosocial housing providers in Scotland,subject to certain points indicated in thefootnotes. Social housing providersoperating in Scotland should be aware oftwo additional issues.

Firstly: some tenants in Scotland have aform of tenancy called the ‘short Scottishsecure tenancy’. This gives tenants limitedrights, and no security of tenure.Following recent decisions by the SupremeCourt,47 an issue has arisen as to whetherthe statutory scheme for the eviction ofshort Scottish secure tenants is compatiblewith the Convention Rights. This raises

will have a responsibility to considerwhether the interference with the right torespect for the home (that eviction wouldinvolve) is justified.45 Such justificationinvolves the court being satisfied that thethree requirements of Article 8 are met:

that the possession claim is made ‘inaccordance with the law’ (that is, thatall necessary procedural requirementshave been met and the decision to seekpossession has been lawfully taken)

that eviction is in pursuit of a legitimateaim (for example, to protect the rightsand freedoms of others to enjoy theirhomes without interference), and

that eviction is a necessary andproportionate response to what theoccupier has done or failed to do.

The second and third of these factorsessentially produce a balancing exercisebetween the human rights of the particulartenant or occupier and the rights of others.Cases at the extremes are easy to identifyand determine. A tenant is highly unlikelyto be lawfully evicted for a minortransgression of the tenancy but is highlylikely to be lawfully evicted if engaged in acampaign of serious and violent anti-socialbehaviour. (Please see the section abovefor more information about anti-socialbehaviour.)

It would be advisable for the provider tobe ready to establish its ability to meet thethree conditions mentioned above so that

45 Manchester City Council v Pinnock [2010] UKSC 45, SC and Hounslow LBC v Powell[2011] UKSC 8, SC.

46 Subject to the constraints of housing legislation (e.g. in the case of a tenant with nosecurity of tenure, the possession order cannot delay possession for more than 6 weeksin England or Wales: Housing Act 1980 s.89).

47 Manchester City Council v Pinnock [2010] UKSC 45, SC, and Hounslow LBC v Powell[2011] UKSC 8, SC.

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what is known as a ‘devolution issue’:because the Scottish Parliament is notpermitted to make laws which areincompatible with Convention Rights, it isprobable that some short Scottish securetenants who are subject to evictionproceedings will now argue that thestatutory provisions which allow them tobe evicted are invalid and should not applyto them.

That issue could be resolved in variousways. The Courts may decide that thestatutory provisions can be interpreted ina way that is compatible with theConvention Rights. If they are interpretedin a way which is compatible withConvention Rights, social housingproviders will be bound by thatinterpretation. Alternatively, the Courtsmay decide that the legislation isincompatible with Convention Rights. Ifthe Courts decide that the legislation isincompatible with Convention Rights itwill be treated as having no effect.Alternatively, the Scottish Governmentcould decide to amend the law before theCourts make any decision on whether ornot it is compatible with ConventionRights. In the meantime, the surest coursefor the social housing provider seeking toevict a short Scottish secure tenant is toconsider carefully whether the eviction ispursued for a good reason, and, if it is, tothoroughly examine whether it is‘proportionate’ to evict the tenant.

In any event, it will remain possible toseek the eviction of a short Scottish securetenant under the statutory provisionsapplicable to all Scottish secure tenants,

on the usual grounds such as rent arrearsor anti-social behaviour.

Secondly: it will be necessary for socialhousing providers in Scotland to bear inmind the relevant Convention Rights inconsidering applications by tenants toassign or sublet Scottish secure tenancies.Assignation requests will be made wherethe prospective assignee has been living atthe rented property for at least sixmonths,48 and presumably intends to staythere. The property may therefore be theassignee’s ‘home’ for the purposes ofArticle 8. That may also be the position inrespect of an application to sublet.

Applications to assign and sublet areusually made where the tenant intends toleave the property (or has already left) andthe proposed assignee/subtenant ismoving in. In the event that theapplication is refused, this often results inthe tenancy ending, and the proposedassignee or subtenant losing his home,because he has no right or title to remainthere. In such cases, the proposed assigneeor subtenant has a right to respect for hishome, and the landlord will have toconsider whether the rejection of theapplication to assign or sublet is anecessary and proportionate means ofmeeting its legitimate aim of managing itshousing stock in the interests of all tenantsand prospective tenants. That requiresparticularly careful consideration wherethe proposed assignee or subtenant isvulnerable as a result of mental illness,physical or learning disability, poor healthor frailty, or for any other reason.

48Under section 32(1)(b) of the Housing (Scotland) Act 2001.



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In this section we set out some questionsyou can ask yourself when makingdecisions about how to treat people, tocheck whether what you propose to do islikely to breach the HRA.

These questions can also help you toreview your existing and proposed policiesand procedures to check whether they arelikely to result in decisions or treatmentwhich comply with the HRA. Importantly,you should ensure that your policies allowindividual circumstances to be taken intoaccount in decision-making and avoid

application of blanket policies. This willallow you, where necessary, to considerwhether what you intend to do isproportionate in individual cases.

These questions should be used to identifyissues which you should explore morefully, but they are not a substitute for legaladvice.

Social housing providers may wish todevelop these questions into a form thatcan be used by all staff to assess anyrelevant policies or practices.

6. How to make decisionswhich comply with the HRA

Chapter 3 explained that some social housingproviders are required to comply with the HRA. Ifyour organisation is subject to the Act, the decisionsyou make and the way you treat people with whomyou come into contact in providing social housingshould be compliant with the Convention Rights.

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1. Does what I propose to do/my policy engage a human rightprotected by the Human Rights Act?

If yes, go to question 2.

If no, the decision or policy is likely to comply with the Human Rights Act. However,you should keep the decision or the operation of the policy under review to check ithas the effect you had expected.

Some questions which might help you decide whether your decision or policy is likelyto engage a Convention Right are:

Article 2: Could it lead to a loss of life, or hamper your ability to respond to a threatto life?

Article 3: Could it result in physical or mental harm, gross humiliation or indignityfor a person? Could it leave a person in inhuman or degrading conditions? Could ithamper your ability to respond to this treatment by a third person or to investigateallegations of such treatment?

Article 5: Could it result in a restriction on a person’s liberty?

Article 6: Does it involve a decision which might determine a person’s civil rights,such as rights under a contract?

Article 8: Could it undermine a person’s enjoyment of his or her home? Could itinterfere with a person’s privacy? Could it lead to sharing of a person’s personalinformation? Could it interfere with a person’s right to spend time with familymembers and enjoy family life? Could it damage a person’s reputation? Could itdamage a person’s dignity, or physical or mental autonomy? Could it interfere witha person’s correspondence? Could it stop you protecting a person’s home againstexternal interference, such as anti-social behaviour or environmental problems?

Article 9: Could it restrict a person’s ability to practise or live according to his orher religion or beliefs?

Article 10: Could it restrict a person’s expression of ideas, opinions, a person’sartistic expression, or a person’s access to information?

Article 11: Could it restrict a person’s ability to associate with others, to join andleave organisations, or to demonstrate?

Article 14: Could it have a negative impact on some people or groups in relation toan area protected by a Convention Right? Could it distinguish between people onthe basis of a personal characteristic, such as gender, disability, or homeless status,in relation to an area protected by a Convention Right?

Article 1 of Protocol 1: Could it result in someone losing their property, or restrictthe way in which they enjoy or use it?

In order to answer these questions, you could consult people about the likely effect ofthe decision or policy, and look at data which gives you information about the likelyaffect of your decision and policy.




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2. Is the right engaged an absolute right?


If no, go to question 3.

3. Is the right engaged a limited right?


If no, go to question 4.

4. Is the right a qualified right?


5. Does what I propose to do restrict, limit, or interfere with the right?

If yes, the policy or decision is unlikely to comply with the Human Rights Act.Absolute rights cannot be restricted or limited in any way. You should considerhow you could do things differently in order to comply with the Human Rights Act.

If no, the decision or policy is likely to comply with the Human Rights Act.However, you should check that your decision or policy does not have a negativeimpact on particular people or groups. You should also keep the decision or theoperation of the policy under review to check it has the effect you had expected.

6. Does what I propose to do restrict the right?


If no, the decision or policy is likely to comply with the Human Rights Act.However, you should check that your decision or policy does not have a negativeimpact on particular people or groups. You should also keep the decision or theoperation of the policy under review to check it has the effect you had expected.

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7. Does what I propose to do limit the right in the way setout in the Article containing the right?

If yes, the decision or policy is likely to comply with the Human Rights Act.However, you should check that your decision or policy does not have a negativeimpact on particular people or groups. You should also keep the decision or theoperation of the policy under review to check it has the effect you had expected.

If no, the policy or decision is unlikely to comply with the Human Rights Act.Limited rights can only be restricted in the ways set out in the particular Articlewhich protects the right. You should consider how you could do thingsdifferently in order to comply with the Human Rights Act.

8. What is the purpose behind what you are trying to doand is that purpose one of the permitted objectives? ForArticles 8, 9 and 10, the permitted objectives are set outin the Article which protects the right. For Articles 14and Article 1 of Protocol 1, the permitted objectives arenot set out in the Articles, but you must have a‘legitimate aim’.


If no, the policy or decision is unlikely to comply with the Human Rights Act.You can only restrict a qualified right for the purposes enumerated in the Articlewhich protects the right in question. You should consider how you could dothings differently in order to comply with the Human Rights Act.

9. Does the law allow you to do what you intend to do?


If no, the policy or decision is unlikely to comply with the Human Rights Act. Inorder to restrict a qualified right, you must be acting in accordance with the law.You should consider how you could do things differently in order to comply withthe Human Rights Act.



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10.Is what you intend to do a ‘proportionate’ way ofachieving your objective?

If yes, the decision or policy is likely to comply with the Human Rights Act.However, you should check that your decision or policy does not have a negativeimpact on particular people or groups. You should also keep the decision or theoperation of the policy under review to check it has the effect you had expected.

If no, the policy or decision is unlikely to comply with the Human Rights Act.You can only restrict a qualified right in a way which is proportionate to the aimpursued. You should consider how you could do things differently in order tocomply with the Human Rights Act.

The following considerations will help you consider whether what you intend todo is proportionate:

Will your decision/policy help you achieve your objective?

Are there other ways of achieving your objective which would be less harmfulto a person’s rights?

Is the interference with the right kept to a minimum?

What will be left of the person’s right if you go ahead with the decision orpolicy? Would it make the right meaningless?

Generally, complaints about human rightsare less likely to be made against socialhousing providers where providers haveacted fairly, transparently andproportionately in their dealings withparticular individuals.

Records of decisions made

When complaints are pressed, providerswill be better able to deal with them ifdecision-making about the matterscomplained of has been supported by clearrecord-keeping and a clear ‘audit trail’ ofwhat was considered, when and by whom.Matters which might otherwise end up asclaims of human rights infringements,

made to the courts or regulators, can oftenbe avoided if service recipients areprovided with clear written explanationsof why relevant decisions have been taken,and given opportunities to makerepresentations and in-house rights ofreview and/or appeal.

Training on the Human Rights Act

It is in a social housing provider’s bestinterests to ensure that all its housing andmanagement staff have initial training onthe relationship between human rightsand social housing (with ready access to acopy of this guidance), and that suchtraining is refreshed at regular intervals.

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7. Is my organisationsubject to other ruleswhich affect publicauthorities?

The fact that your organisation is subject to the HRAbecause it carries out public functions does not meanthat it is a public authority for all other purposes.Each law which regulates public authorities will haveits own test for deciding which organisations arepublic authorities for the purposes of that law. For example:

The rules regulating publicprocurement apply to ‘contractingauthorities’. Contracting authorities arenot defined by reference to whether ornot they carry out ‘public functions’under the HRA.

The rules determining which bodiesand acts are subject to judicial revieware different from the rules whichdecide which bodies and acts aresubject to the HRA. Many bodies whichare subject to the HRA will be judiciallyreviewable on grounds other thanhuman rights, but this is notautomatically the case.

The fact that your organisation iscarrying out public functions for thepurposes of the HRA does notautomatically bring it within the publicsector borrowing regime.

The obligations under the Freedom ofInformation Act and Freedom ofInformation (Scotland) Act apply tobodies listed in those Acts or designatedas subject to the Act by the Secretary ofState or Scottish Ministers.

However, there are some other laws whichapply to organisations which carry outpublic functions under the HRA. So if youare subject to the HRA because you carryout public functions, you will also berequired to comply with these other laws.The section below explains briefly how the Equality Act 2010 (the Equality Act)applies to such bodies, but is not acomprehensive guide to your obligations.If you need to know more, you should seeklegal advice and refer to the Equality ActCodes of Practice and guidance availableon the Commission’s website.


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Equality Act 2010

The Equality Act 2010 requires any personor organisation which carries out publicfunctions for the purposes of the HRA tohave ‘due regard’ to how they caneliminate discrimination, advance equalityof opportunity and foster good relations indoing so. This is a positive obligationrequiring people to think proactively abouthow they can achieve these aims in theway that they go about their business.They must also attach appropriate weightto the need to do so. This duty is known asthe ‘public sector equality duty’. Therequirement to have due regard to theneed to eliminate discrimination appliesto all the ‘protected characteristics’


protected by the Equality Act: age,disability, gender reassignment, marriageor civil partnership, pregnancy andmaternity, race, religion or belief, sex andsexual orientation. The second and thirdrequirements (to have due regard to theneed to advance equality of opportunityand foster good relations) apply to all ofthe protected characteristics apart frommarriage or civil partnership. If yourorganisation is subject to the HRA, it willbe subject to the public sector equalityduty in carrying out its public functions. Itwill also be prohibited from discriminatingagainst others in carrying out thosefunctions. For further information, seeChapter 3.

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Appendix 1:The Convention Rights

This Appendix briefly explains the rights protected bythe Human Rights Act. In addition to the rightsdescribed below, Article 6, 8 and 14 are described inChapter 4. This is not an exhaustive explanation ofthe requirements of these rights. If you need moredetail, you should seek legal advice.

Article 2: Right to life Article 2 is a limited right. Everybody hasthe right not to be deprived of their lifeexcept in the limited circumstancesdescribed in Article 2. Where you suspectsomeone’s life is at risk, for example, as aresult of domestic violence, you shouldtake active steps to protect their life. Youshould also do so if someone lives underyour care. If you work with people knownto be dangerous, you should take steps toprotect the public from such persons. Thisright can also require an officialinvestigation into deaths.

Article 3: Prohibition of torture Nobody shall be subjected to torture, or toany treatment or punishment which isinhuman or degrading. This is an absoluteright. It will never be justifiable to torturesomeone or subject them to inhuman ordegrading treatment. You must not treatanyone in this way and must intervene tostop torture and inhuman or degradingtreatment if you know it is happening tosomeone. For example if you know a childis being ill treated or a disabled person is

being harassed, you have a duty to takeaction to stop it. This right can alsorequire an official investigation intoallegations of torture and inhuman ordegrading treatment.

Article 4: Prohibition of slavery andforced labour Article 4 is a limited right. Nobody can beowned by another person or made to dowork that they have not agreed to do,except in the circumstances described inArticle 4, such as when it is part of asentence for a crime. If you suspectsomeone is being forced to work withoutsuitable payment, you should take actionto protect that person’s rights.

Article 5: Right to liberty andsecurity Article 5 is a limited right. Nobody can bedetained or arrested, even for a shortperiod, except in the specificcircumstances described in Article 5. Theright also sets out the steps which must befollowed by those who have the power toarrest and detain others.


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Article 7: No punishment withoutlaw Nobody should be convicted of a criminaloffence if the act or omission was notcriminal at the time it was committed.Nobody should be given a punishmentwhich is greater than the one that wasapplicable at the time they committed thecrime. This is an absolute right.

Article 9: Freedom of thought,conscience and religion Everyone has the right to hold religiousbeliefs, personal opinions and viewswithout interference. This includes theright to change religion or belief, and notto hold any religion or belief. This is anabsolute right.

People also have the right to practise,observe, teach and worship in accordancewith their religion or belief, but this is aqualified right. It can be restricted, butonly in accordance with the law in theinterests of public safety, for theprotection of public order, health ormorals, or for the protection of the rights and freedoms of others, and only to the extent necessary to achieve one ofthese aims.

Article 10: Freedom of expression Everyone has the right to hold and express opinions freely, even if they areunpopular. This includes expressionthrough public speaking and bydemonstrations and in leaflets,newspapers or on the internet. People alsohave the right to receive opinions andinformation. This is a qualified right. Youmay, therefore, place restrictions on thisright, if your basis for doing so is set out ina law, if you do so for one of the specifiedreasons (in the interests of nationalsecurity, territorial integrity or public

safety, for the prevention of disorder orcrime, for the protection of health ormorals, for the protection of thereputation or rights of others, forpreventing the disclosure of informationreceived in confidence, or for maintainingthe authority and impartiality of thejudiciary), and your interference with theright is no more than is necessary toachieve the aim. For example, if a personincites racial hatred, you can take action tostop it by reporting it to the police.

Article 11: Freedom of assembly andassociation Everyone has the right to assemble andassociate with other people in a peacefulway, including by holding demonstrationsand forming or joining a trade union.Nobody can be forced to join a protest, oran association. This is also a qualifiedright. This means that you can only dosomething which interferes with this rightin the interests of national security orpublic safety, for the prevention ofdisorder or crime, for the protection ofhealth or morals or for the protection ofthe rights and freedoms of others and ifyou have a legal basis for doing so. Youcannot interfere with it more than isnecessary for those purposes.

Article 12: Right to marry All men and women of marriageable age have the right to marry and found a family. The State can decide whatmarriageable age is. This is an absolute right.

Article 1 of Protocol 1: Right toprotection of propertyEveryone has the right to enjoy theirproperty peacefully. ‘Property’ coversleases and personal property. This is aqualified right. You cannot take away


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someone's property, or place restrictionson how they use it, unless you are doing soin the general interest and have a properlegal basis for doing so. You should alsostrike a fair balance between the rights ofthe individual and the general interest.

Article 2 of Protocol 1: Right toeducationNobody should be denied access to theeducational system which exists. This does not create a right of access to anyparticular educational establishment.Parents’ religious and other beliefs should be respected when their childrenare educated by the State. This is anabsolute right.

Article 3 of Protocol 1: Right to freeelectionsThe government must hold elections atreasonable intervals. The elections mustenable people to vote in secret. This is anabsolute right.


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Appendix 2: Glossary

Absolute rights: These are human rights which cannot be breached or restrictedunder any circumstances.

ALMOs: ALMOs are arms-length management organisations, which manage socialhousing stock on behalf of local authorities. The local authority retains the housingstock and controls the allocation policy.

Article: This is a section of an international treaty or convention. Each human rightprotected in the Human Rights Act is found in an Article of the European Conventionof Human Rights or its Protocols.

Convention: This is an agreement between States. These international agreementsare also called treaties.

Convention Rights: These are the human rights protected by the Human Rights Act.

Declaration of incompatibility: If a court or tribunal finds that a law isincompatible with the Convention Rights it can make a statement called a ‘declarationof incompatibility’. A declaration of incompatibility does not make a law invalid.

ECHR: In this guidance, ECHR is used as shorthand for the European Convention onHuman Rights.

ECtHR: In this guidance, ECtHR is used as shorthand for the European Court ofHuman Rights. When a person thinks a State has breached its human rights, he or shecan take a case to the European Court of Human Rights.

Judicial Review: This is a procedure which allows individuals to challenge acts oromissions of public bodies before the courts.

Limited rights: These are human rights which can be limited in the particularcircumstances set out in the Article containing the right.

Protocol: A protocol is a later addition to a convention or treaty.


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Public function: Broadly, a public function is a role or activity of a type normally carriedout by the State. However, there is no list of public functions or specific definition of apublic function. The courts decide on a case-by-case basis whether a particular activity is ‘a function of a public nature’. The Court of Appeal recently decided that a housingassociation was carrying out a public function when allocating and managing socialhousing (including eviction), based on the circumstances of that case.

Qualified rights: These are human rights which can be limited to the extent necessary to achieve certain important objectives, like protecting public health, or security. Anyrestriction on an individual’s human rights must be no greater than necessary to achievethe objective and must be otherwise in accordance with the law.

Social housing: Social housing is housing owned either by a local authority or housingassociations, which is rented out, usually to people on low incomes. Rents in the socialhousing sector are kept low through State subsidy.

Social housing providers: Social housing providers are the bodies that own social housing.

Statement of compatibility: A Minister who presents a proposed law to theWestminster Parliament must make a statement called a statement of compatibility.

Treaty: This is an agreement between States. These international agreements are alsocalled conventions.

Victim: In this guidance, the term ‘victim’ is used to refer to a person whose human rightshave been, or are at risk of being, breached. Anyone can be a victim, not only citizens.



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Appendix 3:The Commission: Who weare and how we can help

The Equality and Human Rights Commission is a statutory body set up under theEquality Act 2006.

We are a National Human Rights Institution with an ‘A’ status accreditation from theUnited Nations (UN).49

Our job in relation to human rights is to:

Encourage good practice in relation to human rights.

Promote awareness, understanding and protection of human rights.

Monitor the effectiveness of laws relating to equality and human rights and monitorand report progress towards identified desired outcomes.50

See the ‘Contact us’ information at the end of this guide to find out how to get in touch.

See the ‘Find out more’ section in Appendix 4 for a list of other organisations andresources that may provide further guidance.

49 In order to gain an ‘A’ status accreditation, we must be fully compliant with the ParisPrinciples. We were assessed according to a number of well-established criteriaincluding composition and guarantees of independence and pluralism; having amandate and adequate staff and budget to effectively protect and promote humanrights; encouraging ratification of international human rights instruments; engagementwith the international human rights system and cooperation with other NationalHuman Rights Institutions.

50 See section 9 of the Equality Act 2006.

Appendix 4: Find out more

You can find out more about housing and human rights from the following organisations:

British Institute of Human Rights www.bihr.org.uk

Chartered Institute of Housing www.cih.org

Department for Communities and Local Government www.communities.gov.uk

The Homes and Communities Agencywww.homesandcommunities.co.uk

Housing Diversity Networkwww.housingdiversitynetwork.org.uk

Housing Law Practitioners Associationwww.hlpa.org.uk/cms/

The Law Society www.lawsociety.org.uk

Local Government Improvement and Development www.idea.gov.uk

National Housing Federationwww.housing.org.uk

Tenant Services Authority www.tenantservicesauthority.org

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http://www.bihr.org.uk

http://www.cih.org

http://www.communities.gov.uk

http://www.homesandcommunities.co.uk

http://www.housingdiversitynetwork.org.uk

http://www.hlpa.org.uk/cms/

http://www.lawsociety.org.uk

http://www.idea.gov.uk

http://www.housing.org.uk

http://www.tenantservicesauthority.org

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Appendix 5:Advisory group membersThe Commission would like to thank the following organisations for their advice andsupport in producing this guidance:

Anchor

Department for Communities and Local Government

The Homes and Communities Agency

Housing Diversity Network

Housing Law Practitioners Association

The Law Society of England and Wales

National Housing Federation

Oxfordshire County Council

Tenant Services Authority

© Equality and Human Rights Commission March 2011ISBN 978 1 84206 379 8

Artwork by Epigramwww.epigram.co.uk

Contact usEngland

Arndale HouseArndale CentreManchester M4 3AQ

Helpline:

Main number0845 604 6610

Textphone0845 604 6620

Fax0845 604 6630

Scotland

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Helpline:

Main number0845 604 55 10


Fax0845 604 5530

Wales

3rd Floor3 Callaghan SquareCardiff CF10 5BT

Helpline:

Main number0845 604 8810


Fax0845 604 8830

Helpline opening times:

Monday to Friday: 8am-6pm

If you require this publication in an alternative format and/or language please contact therelevant helpline to discuss your needs. All publications are also available to downloadand order in a variety of formats from our website:


http://www.epigram.co.uk


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