Friday, 28 April 2017

Rights law is an asset

Without article 8, those in bedroom tax disputes will have an uphill struggle, says Giles Peaker, solicitor at Anthony Gold

As the home and justice secretaries openly consider abandoning the Human Rights Act and withdrawing from the European Convention on Human Rights, what would that mean for social housing? (Leaving aside questions of whether such a withdrawal would be remotely possible.)

Possession cases

The most obvious effect would be on possession. Social housing providers are becoming familiar with tenants facing eviction using human rights defences, based upon disproportionate interference with article 8 rights to private and family life. These defences are raised in situations where the court has no discretion over making a possession order and cannot consider for itself whether it is reasonable. Introductory and demoted tenancies, ‘starter’ assured shortholds, failed successions and non-secure tenancies or licences are the well-known examples.

While some social housing providers might consider a disappearance of article 8 defences to be a relief, all article 8 requires is the possession proceedings to be a proportionate means of achieving a legitimate aim. The landlord needs to have properly considered its reasons for seeking possession in view of the occupant’s circumstances. This should not be a requirement that has to be imposed by human rights law.

The Equality Act

Other rights that come up in housing cases are arguably already incorporated into the Equality Act 2010. The disappearance of article 14 on discrimination would certainly not relieve social housing providers of their duties not to discriminate, directly or indirectly, in relation to the various protected characteristics set out in the equality act. This is because public bodies and/or landlords and service providers would still be subject to that duty.

But article 14 may yet come to the rescue of social landlords facing the bleak alternatives of the bedroom tax, losing rent through redesignation of properties, or spending increased sums on administration, pursuit of arrears and possession proceedings.

Bedroom tax challenges

Ten judicial reviews of the bedroom tax regulations, due for a full hearing in early May, are based upon grounds of discrimination against disabled adults and children who are unable for various reasons to share bedrooms. Such a direct challenge would be far harder on traditional public law grounds. Whether these claims will be successful has yet to be seen, but the precedent of the Gorry v Wiltshire case is encouraging.

Successful claims may result in the Department for Work and Pensions redrawing the regulations and at least some households being exempted from the bedroom tax easing the problems facing housing providers and releasing them from some very hard decisions. There is also a separate judicial review on article 8 grounds by Liberty based on children of separated families.

Some social housing providers have grumbled about the effect of the HRA on their housing management, though it is hard to see which requirements wouldn’t be good practice anyway.

But both the reason why ministers want rid of the HRA and its merits for the rest of us become clear in the challenges to the bedroom tax regulations, causing serious issues for social tenants and landlords alike.

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