Human rights and equalities, like Health and Safety, get a bad press. The media associate them with overweening European institutions and bureaucratic interference with the ability of people to do whatever they like. In reality it is about providing checks and balances to the power of the state or public bodies, seeking to ensure that individuals get equal treatment irrespective of their personal characteristics and are not subject to unfair or arbitary decisions.
The Equality and Human Rights Commission has just published an excellent guide to the human rights legislation and its impact on social housing. As the introduction to ‘Human rights at home: Guidance for social housing providers’ says: “Poor housing can affect a person’s health, work, education, relationships and life chances, which is why the right to respect for a person’s home is in the Human Rights Act.”
The guide deals with many of the current controversies surrounding the operation of the European Convention on Human Rights in housing, including the applicability of the Act to housing associations (broadly yes, but it does not make them public sector bodies) and the restrictions recently placed by the Courts on ‘mandatory’ rights to possession (including the ending of starter and demoted tenancies), where it is now clearly necessary to demonstrate reasonableness and proportionality in the decision.
The Guide includes a useful step by step set of questions designed to help providers to make decisions that are not in breach of the Human Rights Act. Given the timing of publication, it does not address the issues that may soon arise from the government’s legislative programme. I can think of two that might interest lawyers and the Courts in future – the application of rules to award and end flexible tenancies and the circumstances in which eviction would be justified in the case of a tenant who has fallen into arrears because their housing benefit entitlement has been severely curtailed due to underoccupation but for whom there is no reasonable means of obtaining a smaller home.
In my view the landlord/tenant relationship is shifting far too far in favour of the landlord and it is a good thing that the Human Rights Act provides a constraint on landlords’ activities. The Guide should encourage reflection amongst those who want to maximise the freedom of action of landlords: even if the Localism Bill appears to give them more absolute powers to end tenancies, the Human Rights Act is lurking in the background to provide some possibility of challenge, redress and amelioration.