Saturday, 28 March 2015

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.

Readers' comments (2)

Comments are only open to subscribers of Inside Housing

Already a subscriber?

If you're already a subscriber to Inside Housing, please sign in to your account to view comments and add your own.

Not yet a subscriber?

If you don't yet subscribe to Inside Housing, please visit our subscription page to view our various subscription packages.

Have your say

You must sign in to make a comment

sign in register

Newsletter Sign-up



  • Rights and wrongs


    A government release this week claimed that 33,000 new home owners have been created through Right to Buy since 2012

  • Rental rights

    16 January 2015

    Increasing regulation for the private rented sector is not the answer to driving up standards, argues Alan Ward

  • Disabled rights

    21 October 2014

    The councillor whose disabled employment question to Lord Freud unleashed a torrent of criticism on the welfare minister writes us an exclusive blog

  • The rule of law


    What does the future of housing hold?

  • Insolvency asset rescue proposals announced


    The Homes and Communities Agency (HCA) is to draw up templates for action to try to protect housing association homes in the event of insolvency.


  • Brain food

    11 November 2014

    Has meditation got a place in social housing? Dawn Foster finds out

  • Dragons' Den for retrofit technology

    4 September 2014

    Copying the popular BBC format, Accord Group set up a Dragons’ Den of its own to find the best green technologies to test in a £3m retrofit project. Simon Brandon finds out why

  • Job interviews in housing: outside the box

    20 August 2014

    Some social landlords believe a traditional interview is not the way to find the best candidate for the job. Simon Brandon reports on how Bromford Group is using role-playing games to get to know prospective employees

  • Need for sustainable drainage

    13 May 2014

    This year’s floods underlined the need to build sustainable drainage systems and if they mimic the natural process of water absorption and dispersion then so much the better, says John Beresford

  • Mind over matter


    A Merseyside landlord is training its staff to become mental health first aiders to help them support both colleagues and tenants, as Helen Clifton reports

IH Subscription