Human rights challenges to local authority homelessness decisions

With effect from October 2000, the Human Rights Act 1998 incorporated into UK law the European Convention on Human Rights. There is no article that specifically gives a right to housing. The most significant housing-related articles are as follows.

Article 3

'No one shall be subjected to torture or to inhuman or degrading treatment or punishment'.

Article 6

'In the determination of civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law...'

Article 8

'Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference ... with the exercise of this right except ... in accordance with the law and as is necessary in a democratic society in the interests of ... public safety or the economic well-being of the country ... or for the protection of the rights and freedoms of others'.

Article 14

'The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.'

In considering whether a particular decision or Act is compatible with the Convention, the following questions arise:

• Is a Convention right engaged (can it be invoked in a particular situation)?

• Has the right been interfered with?

• Can the interference be justified, where this is allowed (eg article 8)?

Note that where an authority is considering whether to provide support in order to avoid of a breach of article 3, it may consider offering to make travel arrangements to return the person to their country of origin. 

The Supreme Court held that any entitlement to accommodation following an homelessness application is not a 'civil right', rather it is the outcome of a series of evaluative judgments by the local authority as to whether the statutory criteria under Part 7 of the Housing Act 1996 are satisfied. As a homelessness application does not give rise to a civil right, the review procedure and the statutory appeal process does not engage Article 6.[1]

Previously the House of Lords held that the review procedure, the statutory appeal process and the availability of judicial review ensured the compatibility of procedures with article 6.[2] The Supreme Court observed that had it been necessary to decide the matter it would not have departed from the Lords' decision.[3]

If an applicant has to sleep on the streets, this will not necessarily constitute inhuman or degrading treatment. Hence, in one case the European Court of Human Rights (ECHR) ruled that a local authority's failure to perform its homelessness duties did not give rise to compensation and was not a breach of the Convention.[4] In that case, however, the claimant was evicted from temporary accommodation because of his behaviour, and had been offered alternative accommodation. Where a client is destitute and there are exceptional personal factors, article 3 may be engaged.[5]

The Court of Appeal has drawn a distinction between the circumstances in which there may be a breach of article 8 with respect to an individual, and with respect to a family. Under article 8 an individual has a right to privacy, or the right to 'physical or psychological integrity'. The Court said that it is 'hard to conceive of a situation in which the predicament of an individual will be such that article 8 requires him to be provided with welfare support, where his predicament is not sufficiently severe to engage article 3'. On the other hand, 'article 8 may more readily be engaged where a family unit is involved. Where the welfare of children is at stake, article 8 may require the provision of welfare support in a manner which enables family life to continue'.[6] Welfare support includes housing.

In other words, if a failure to provide suitable accommodation causes an individual to suffer 'inhuman or degrading' treatment such as to compromise their right to physical or psychological integrity, this may constitute a breach of article 8. Article 3 need not be breached, but should be at least engaged. There must be a degree of 'culpability' on the part of a local authority before it will be held to have breached a person's article 8 rights.

Where there has been a failure to provide accommodation under section 193 of the Housing Act 1996, this is not in itself a breach of article 8: the issue is whether the failure has caused interference with private or family life. If so, then compensation may be payable.[7]

Article 8 is relevant not only to cases where accommodation may not have been provided at all, but also where the accommodation provided (in this case, under section 188 of the Housing Act 1988) is not suitable, such that the inadequacies of the accommodation would interfere with private and family life.[8]

Breach of article 8

In one case, it took the local authority two years to house a couple and their six children. The wife was severely disabled because of a stroke. She was dependent on a wheelchair and doubly incontinent, and the family was left living in entirely unsuitable accommodation. The wife could not use her wheelchair in the property and could not access the bathroom without assistance. This was held to be a breach of article 8 because there was no possibility of a near normal family life and the wife's 'physical and psychological integrity' was also compromised (in this case article 3 was engaged, although – despite the severity of the situation – not breached). Compensation of £10,000 was awarded.[9]

No breach of article 8

The courts will, however, consider all the circumstances of the case. In one case, an applicant with a disabled child who could not reach the toilet and bathroom in the accommodation had applied as homeless and suitable accommodation was not provided under section 188 of the Housing Act 1988 for more than two years. The court accepted that the authority was in breach of its statutory duties, but held that there had been no breach of article 8 because:[10]

• the authority was making efforts to find accommodation for the applicant, albeit under Part 6 of the Act (allocations) rather than Part 7 – in other words there was a low level of culpability

• accommodation which may have been offered under Part 7 was unlikely to have been much more suitable than the applicant's current home and so would not have improved the applicant's situation substantially

• a balance has to be struck between the general interests and the interests of the individual in deciding whether there has been a breach. In this case, the court was not convinced that the council would have found suitable accommodation during the time of the breach

• the main impact of the authority's failure fell on the disabled son rather than the applicant herself

• family life did continue throughout the period of failure 'although under considerable strain'

• whilst 'the Court of Appeal accepted that article 8 may be more readily engaged where a family unit is involved', it will still be rare that the courts will a breach of article 8 where there has not been a breach of article 3 (see above).

In a case where social services provided a homeless family (which included a disabled child) with one-bedroom accommodation under the Children Act 1989, in which they remained for eight months until they were offered a two-bedroom property, the Court held that there was no breach of the child's individual rights under article 8 for that period. This was despite a child in need assessment stating that the accommodation did not meet the family's needs due to lack of space for the child – who suffered with significant global developmental delay and epilepsy – to play and thus to develop.  The Court applied the principle that it is highly unlikely that there will be a breach of article 8 in relation to an individual where their article 3 rights are not engaged, and stated that in this case the living arrangements caused no substantial prejudice to the child's life. He attended school full time, he could be taken out of the house by his parents, and could engage in limited play activities at home. In any event, the authority had a low level of culpability in that it had acted quickly when the family was about to become homeless, and had made efforts to secure them alternative accommodation. There was no question of a breach of the right to family life under article 8 as the child lived with and was cared for by his family at all times.[11]

The Code of Guidance also states that authorities will need to give careful consideration to the human rights issues when deciding what accommodation is suitable for Gypsies and Travellers to whom they owe a duty.[12]

The Court of Appeal has given guidance aimed at reducing damages claims, suggesting that the Local Government and Social Care Ombudsman should be used instead, and criticising the use of legal proceedings. Damages should only be awarded when it is 'just and appropriate' and 'necessary' to achieve 'just satisfaction'. In cases of maladministration, awards should be moderate but not minimal, as this would undermine the respect for Convention rights.[13]