Housing Law

Despite a community care assessment by the Local Housing Authority the applicant was left, according to the courts in ‘deplorable’ conditions for twenty months.  The court held that the Convention right of the applicant had been breeched in particular Article 8 and was awarded compensation.  

In a contrast to the decision made in R (Bernard v Enfield LBC  the courts have frequently reiterated that the right to a home under Article 8 does not entail a duty on the state to supply housing.  In the joined cases Anufrijeva and Another v Southwark London Borough Council; R(Mambakasa) v Secretary of State for the Home Office; R(N) v Secretary of State for the Home Office (Lord Chief Justice, Master of the Rolls and Auld LLJ) ruled on October 16 2003 that “misadministration in the provision of welfare support such as the provision of housing did not infringe the right to private or home life under Article 8 unless the public authority in question was particularly culpable and even then damages should not necessarily be awarded”.

Thus while recognising the importance of the Convention; it would however be a grave misjudgement not to acknowledge the limits to which the Convention rights have been afforded economic and social rights. Thus, many of the Convention rights have implications of social or economic nature, as housing cases are more concerned with these rights.

However the fundamental political rights afforded by the Convention are still regarded as beneficial and influential in the housing sphere but to a lesser degree than that afforded by social and economic rights.  But in saying this, Convention rights provide an opportunity by which social and economic rights could be enforced by way of highlighting ‘incompatibility’ in domestic law with Convention rights that has been afforded through the introduction of The Human Rights Act.  “The ECtHR has emphasised that there is no ‘watertight division’ separating Convention rights from other social and economic rights.”  Thus in essence political, economic and social rights are all in twined and are all necessary.

The importance of housing as a fundamental right has always been stressed but has only recently been enforced by legislation.  The European Convention of Human Rights (‘the Convention’) is an international agreement entered into by the member states of the Council of Europe in November 1950.  The Human Rights Act makes the principal rights and freedoms enshrined in the Convention directly enforceable in domestic courts.

The Human Rights Act does make a difference to how important the Convention is to housing lawyers.  It opens the door for debate and challenges decisions on their legality and procedural impropriety that may have been perpetrated by public authorities such as Local Housing Authorities.  It allows for a degree of accountability that would otherwise be impossible to comprehend and enforce through domestic law.

In the case of Mendoza v Ghaidan Mr Mendoza, from 1972, lived in a stable and permanent homosexual relationship with his partner.  Mr Mendoza and his partner lived together in the same way that spouses live together in a married relationship.  In possession proceedings brought by the claimant on the tenant's death in January 2001 the judge granted a declaration that the defendant did not succeed to the tenancy of the flat as the surviving spouse of the original tenant within paragraph 2 of Schedule 1 to the Rent Act 1977 n1 but became entitled to an assured tenancy of the flat by succession as a member of the original tenant's family within paragraph 3(1) of that Schedule.

This decision was based on the earlier judgement of Fitzpatrick v Sterling Housing Association where it was held that the expression ‘living with the tenants as his or her husband or wife’ was gender specific, and was only construed to mean heterosexual relationship and was not capable of encompassing same sex relationship.

Mr Mendoza appealed on the grounds that, since he and the original tenant were partners in a longstanding homosexual relationship.  The Rent Act should be interpreted in a way which is compatible with his Convention rights pursuant to section 3 of the Human Rights Act which states that:

“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.” 

This was achieved in Mendoza by interpreting the expression ‘as his or her wife or husband’ to mean ‘as if they were his or her wife or husband’.  This case highlights the importance of the Human Rights Act in enforcing Convention rights in matters of housing law.  It shows that housing lawyers have the power to change domestic law, though be it indirectly on matters of housing which they believe to be conflicting with the Human Rights Act.  In essence the Human Rights Act has given housing lawyers much needed muscle in enforcing Convention rights.

This is further highlighted by the case of R (Morris) v Westminster CC.  Ms Morris was a British Citizen.  Her 2 year old daughter was a Citizen of Mauritius.  The child was subject to immigration control and so could not confer priority need on Ms Morris case for housing under s185 (4) of the Housing Act.

Miss Morris applied for a judicial review on the basis that the decision was in breech of Article 8 and Article 14.  The court held that s185 (4) was incompatible.  It issued a certificate of incompatibility.

The courts statement of incompatibility gives effect that Parliament is now required to change the legislation so that it is no longer incompatible.  “Until the legislation is changed housing authorities should use their power to accommodate applicants who are not in priority need so as to avoid a breach of a Convention right.  An applicant who is unintentionally homeless and eligible, but not in priority need because of the effect of s185 (4), could seek judicial review of any refusal to accommodate on the basis of a breach of their Convention Rights i.e. Articles 8 and 14.”

This case further stresses the importance of the Human Rights Act in upholding Convention rights in relation to housing law.  Though the power of housing lawyers could be argued to be limited, in that the ‘scope of their power’ is in highlighting to the courts the breeches and ‘incompatibility’ of domestic law with Convention rights.  Then it is up to the courts to decide if any ‘incompatibility’ exists and it is up to the courts to deicide if of any breeches in Convention rights.

Bibliography

Books 

Barker, C et al.  Housing and Human Rights Law, 2001

Websites

www.crisis.org.uk

www.homeless.org.uk

www.lawtel2002.com

www.lexis-nexis.com

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