Equality and Human Rights Commission

This document is aimed at those who work in social housing provision, including housing associations and local authorities. It provides guidance on complying with the Human Rights Act 1998. It explains which organisations are subject to the Act, which rights are protected by the Act, and which rights are particularly relevant to social housing providers. It provides practical examples of how rights are relevant in different aspects of social housing provision, highlighting this through hypothetical case studies. It draws on legal cases but is written in non-legal language. It provides a useful checklist to help social housing providers review their policies and practices for compatibility with the Act. It includes a list of sources of further information.

• Providing social housing in a way that is compatible with the Human Rights Act can improve the quality of service provision, making a positive difference to people’s lives and improving an organisation’s performance during inspection and regulation.
• Acting in compliance with the Act requires procedural fairness and non-discrimination in all stages of the process of providing social housing.
• Providers must act proportionately when dealing with problems that might impact on the human rights of individuals. Compliance with the Act does not mean that providers cannot take steps to, for example, secure rent, tackle anti-social behaviour or evict people when necessary.

Human rights and social housing

The first three sections of the guidance provide brief answers to some preliminary questions about compliance with the Human Rights Act (HRA) 1998. They ask:

• what are human rights and where do they come from?
• how does the HRA work?
• which organisations are subject to the HRA?

These sections place compliance with the HRA in context and provide essential information about the operation of the Act. The fourth section explains the differences between types of rights:

• rights that cannot be breached or restricted under any circumstances (absolute rights)
• those that can be limited in particular circumstances set out in the Article (limited rights); and
• those that can be limited to the extent necessary to achieve important objectives, like protecting public health or security (qualified rights).

This section identifies which substantive articles in the HRA are most relevant to social housing providers and provides a brief summary of the relevant content of each:

• The right to a fair trial: this broadly means that a person should be given the opportunity to participate effectively in any hearing of their case – this is likely to be particularly relevant in review of appeal proceedings determining a tenant’s rights;
• The right to respect for private life, family life and the home: personal information should be kept confidential; the right to respect for the home does not mean a right to housing – it means a right to access and live in ones home without intrusion or interference; the right to family life includes the right for a family to live together;
• The prohibition of discrimination: everyone must have equal access to the rights contained in the HRA.

Applying human rights in practice

Having set out this background information, the heart of the document is a detailed consideration of what the HRA means for social housing providers in practice. This section is usefully broken down into various practical activities that social housing providers undertake – the 'housing journey':

• allocation of housing
• the terms of tenancy agreements
• repairs and maintenance
• aids and adaptations for disabled residents
• environmental impact
• rent arrears and other breaches of tenancy agreements
• anti-social behaviour
• relationship breakdown
• death and succession
• buying the home
• specialist housing accommodation and specialist housing services – for example housing for the elderly and/or disabled
• long leaseholders
• change of landlord, and
• termination of tenancy and eviction.

In considering each of the above the guidance outlines the extent and limits of the relevant rights and the attendant obligations that providers need to meet in order to comply with the HRA. Looking at allocation of housing, for example, the document points out that the HRA does not give anyone a right to the provision of a home, but providers will need to avoid unjustified discrimination and procedural unfairness.

With regard to deaths of tenants the guidance explains that providers will need to take into account the right to respect for the home when seeking possession from a surviving occupier and ask whether seeking possession is proportionate. It provides the example of surviving siblings – where one is disabled and the other his carer – as a case where seeking possession might be disproportionate.

Such hypothetical cases illustrate many of the difficult decisions a social housing provider may face in all of the above areas. The explanations and the case studies will not provide social housing providers with answers applicable in specific situations – and the guidance notes explicitly that it is not a substitute for legal advice. However they usefully illustrate the basic principles that need to be taken into account, and, in particular, highlight difficult situations where the right – HRA-compliant – decision may not be clear.

Footnotes provide references to real cases that have been decided by either UK courts or the European Court of Human Rights, as well as to a number of cases yet to be concluded. These provide readers with the means to seek further information, including legal developments post publication.

The information provided on all of the areas applies in Scotland, as well as England and Wales, – unless explicitly noted otherwise. The document outlines two further considerations for providers in Scotland: the short Scottish secure tenancy, and the human rights considerations when tenants apply to assign or sublet Scottish secure tenancies.

The implications of the information provided are helpfully formulated into a flow chart to aid decision-making. The flow chart presents a series of questions, which, if followed, will allow social housing providers to see whether or not proposed action is likely to comply with the HRA.

Other human rights conventions and issues

The document is focused solely on the HRA, which is itself based on the European Convention on Human Rights. Breaches of the HRA can be heard before UK courts – the document is explicitly focused on compliance with the HRA. Other human rights provisions that may be relevant in the area of social housing provision – the International Convention on Economic, Social and Cultural Rights, and conventions on discrimination and on the rights of disabled people – are not considered. The document also makes little reference to the relevant rights of travellers and gypsies – a human rights issue that providers of social housing may encounter.

Related equality messages

The Guidance notes that the Equality Act 2010 requires any person or organisation that carries out public functions for the purposes of the HRA to have 'due regard' to how they can eliminate discrimination.

Date of review

March 2012

We hope that you found the resource helpful and easy to use. Please let us know about other guidance or references that you think we should include. Send us your feedback.