Rights to respect from a social landlord?

What are the duties owed to occupants of social housing by landlords under the Human Rights Act 1998 following publication of recent Equality and Human Rights Commission Guidance?

A few weeks ago a judge in the European Court of Human Rights dealt with an complaint made to it by Miles & Partners LLP on behalf of Mr Steven Howe. Mr Howe complained that the right to respect for his home guaranteed by Article 8 of the European Convention on Human Rights had been infringed by the UK government when his landlord, Poplar HARCA, recovered possession of his home (the progress of the case in the domestic Courts can be found here). The ECHR judge decided that there was no appearance of an infringement of Mr Howe’s rights and he dismissed the complaint.

For most council and housing association tenants facing eviction, the court has discretion whether to allow the eviction to go ahead. Mr Howe’s case raises the topical issue of an occupant’s right to remain in his home where the occupant has no security of tenure, an issue that has been examined in two very recent Supreme Court cases: Manchester CC v Pinnock and Frisby v Birmingham CC. These cases established that where an occupant without security of tenure is threatened with eviction by a public landlord, they are entitled to have the proportionality of their eviction assessed by a Court.

If the reason for eviction is rent arrears or anti-social behaviour, there will be a clear case for the occupant to answer. However, the reason Mr Howe lost his security was a Notice to Quit served by his estranged wife on Poplar HARCA several years previously to end their joint assured tenancy. In other words, nothing Mr Howe had done brought the tenancy to an end. Notwithstanding, on Poplar HARCA’s case, this act made Mr Howe an unauthorized occupier and it allowed them to recover possession of the property.

HARCA’s decision to evict was grounded on the fact that Mr Howe was the sole occupant of a 3 bedroom property and the property was required for re-allocation to a family on the waiting list. As Pinnock and Frisby have confirmed, a public body will generally be justified in evicting an occupant in these circumstances.

But where does this leave the outgoing occupant and what rights do they really have? Do their personal circumstances not matter in the decision to evict?

Article 8 states that an individual has the right to respect from a public body, which means his personal circumstances cannot be ignored. However, this does not mean that an occupant has the right to expect a public landlord to reverse its decision to evict once it becomes aware of their circumstances. The right to respect depends on a quality of the public body rather than a quality of the individual. If the body has failed to apply the rules and policies it has created to manage its own housing stock not only for those who wish to become tenants but also for those who are already occupying their accommodation, possession will not be proportionate because the body has not respected the individual’s rights.

The Equality and Human Rights Commission has recently published Guidance to Social Landlords to ensure their practices and policies are HRA compliant. The following is an example of the sort of case where the EHRC considers possession proceedings to be disproportionate:

“A social housing provider let a family home 50 years ago to a husband and father. On his death, the wife and mother succeeded to the tenancy. She has recently died. Remaining in occupation (with no right to succeed) are their now adult son and daughter who have each lived in the property for more than 40 years. The property has one extra bedroom (the late parents’ bedroom). The son is severely disabled and is cared for by his sister. They want to remain in the home and use the ‘spare bedroom’ for respite carers when the sister takes a break. In these circumstances an eviction of the son and daughter is unlikely to be proportionate.”

If Social Housing providers pay attention to the Guidance, perhaps this is the sort of case one will no longer see in the Courts in the future. At any rate, this cannot mean that the individual’s right to respect for the home ends with a landlord’s promise not to take possession proceedings. This is because such an occupier does not have the security and rights contained in a typical tenancy agreement and it will be incumbent on SH providers to draft policies to offer such individuals fresh tenancies. The Guidance continues:

“Importantly, you should ensure that your policies allow individual circumstances to be taken into account in decision-making and avoid application of blanket policies. This will allow you, where necessary, to consider whether what you intend to do is proportionate in individual cases.”

If one wonders about the fate of single people like Mr Howe, from whom the safety net of social housing may have been removed through no fault of their own, is there any reason, irrespective of the outcome of possession proceedings, why they should not be shown the same individual respect under Article 8 as those who are disabled (as in the above example)? If a SH provider has drafted a policy allowing a fresh tenancy of the same or different accommodation to be offered in “deserving” cases, the Guidance reminds the provider to consider each case on its own merits and to place the single, able-bodied occupant and the less-able, dependent occupant on an equal footing.

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.