Essay: Whether current human rights law adequately solves the homelessness situation in England

Introduction
The topic of this paper invites the reader to consider whether the current human rights law adequately solves the homelessness situation in England. There no single threat which sufficiently defines homelessness but for the purposes of this paper, the statutory definition of a homeless person, as outlined in Part VII of the housing Act 1996, is “A person is homeless if he has no accommodation available for his occupation, in the United Kingdom or elsewhere, which he- (a) is entitled to occupy by virtue of an interest in it or by virtue of an order of a court”
It is a common ground that human rights law alone cannot eradicate homelessness without effective government policy to house the homeless individuals and families. The homeless individuals could acquire property through either social housing or adverse possession .
The number of rough sleepers across England are currently around 4, 751. This paper takes the premise that these rough sleepers would need to be housed in order for these homeless individuals to exercise their Article 8 rights which guarantees respects for one’s home and Article 1, Protocol 1 rights which entitle one’s (natural and legal person’s) right to peaceful enjoyment of property. One would note that none of the above provisions under human rights law affords ones with home.
In assessing the adequacy of human rights law in preventing homelessness and protecting families who are under occupation of property through social housing, this paper evaluates to what extent property rights and human rights law intersect and interact especially as it relates to homelessness. Further, this paper considered whether there is a conflict between property law and human rights law. It concludes with detailed assessment and evaluation on how the human rights law do not provide protection against homelessness and it suggests possible remedies that the executive and legislative branches of government could provide toward preventing homelessness and protecting the occupiers of the property.
The current housing climate in the UK is affected by rapid changes in ways of living and tenure, intertwined in multifaceted relationships with issues of affordability, supply, security of tenure, and habitability. These issues in realising the right to housing are connected to the current political climate in the UK of austerity, and major cuts to state social security and other key benefits. The follow-on situation has been accurately identified as one of crisis.
The right to suitable housing has been acknowledged globally as a human right within the international human rights framework and the treaties which have been endorsed by the UK. The Universal Declaration of Human Rights stipulates that ‘everyone has a right to an adequate standard of living suitable for the health and well-being of himself and of his family, including housing, and the International Covenant on Economic, Social and Cultural Rights labels this further as a binding commitment.
The first issue to address here is to ascertain if a homeless people or people vulnerable to homeless ness can resist eviction by relying on article 8 of the European convention on Human Rights, which guarantees respect for one’s home, in order to get a protection or remedy from the courts?
Article 8 simply provides that provides that individuals have a right to respect for their home, and does not guarantee or provide a home for individuals. This right on its own is rather limited and is based on the assumption that the individuals who wants to rely on article 8 already has a house. In essence, there must be a balance between the assumptions of absolute rights to property with property rights . In order to adequately address the issue at hand, we need to understand the extent to which the rights of the owner (landlord) triumphs the right of the occupier (tenant) or vice versa. Except if otherwise specified the holder of property has got superior rights over the occupier or any trespassers unless it is a protected right, hence they have mandatory right to possession.
Human rights issues do not arise when the courts have a discretion to grant a possession order against an occupier, however if the courts does not have discretion to do so it must make a possession order. This is where the rights based issues arises
Article 8 affords the “Right to respect for private and family life”. There has been a lot of cases on this issues however the leading case accepted by the UK Supreme Court that is must align with the method taken by the European Court of Human Rights (ECtHR) is Manchester City Council v. Pinnock.
Article 8 rights are rather limited as it does not provide homeless individuals or individuals vulnerable to homeless a place to live or the protection against homelessness unless they have a property already. The question before the courts is whether the property rights to possession are so substantial that any evaluation of the proportionality of the act is completely immaterial.
The perquisite for Article 8’s procedure in the current scenario is that the property must be the household’s main home. Lord Scott argued in Qazi v.Harrow LBC, that;
“Each home had been established on the basis of a proprietary interest in the premises obtained under the contractual tenancy granted by the Landlord. How could the termination of that tenancy in a manner consistent with its contractual and proprietary incidents be held to constitute a lack of respect for the home that had been thus established? The home was always subject to those contractual and proprietary incidents. The contrary view seems to me to treat a ‘home’ as something ethereal, floating in the air, unconnected to bricks and mortar and land.
The view by Lord Scott as regards to the home was perhaps not in consonant with the view of the majority in Qazi. It was seen to be constricted and definitely not consistent with the attitude taken by the ECtHR, or with the jurisprudence in the UK.
The ECtHR arguably had a different perspective and stated that a ‘home suggests the existence of adequate and constant links with a specified place.’ The importance of the tenant’s property rights that was not acknowledged by Lord Scott is substantial because it simply unravels the notion of property law. Lord Scott preferred to engage more with contractual and proprietary events in favour of a much broader, contextual approach to the home. In Hounslow LBC v.Powell, Lord Hope posited that ‘the current issue would be applicable only in cases where an order for possession is pursued against a defendant who has only recently moved into an accommodation on a short-term or perilous basis.’
In Qazi v Harrow LBC’ the sovereignty of property rights is favoured over the occupier’s human rights. The question for the House of Lords in this case was whether Mr Qazi’s article 8 rights superseded Harrow’s right to possession. The majority in the House of Lords did not agree with this assertion, and based their reasoning on the fact that property rights triumphs over human rights.
The view of Lord Scott clearly outlined the reasoning behind the decision of the majority with regards to this issue. Lord Scott suggested that “The intention of these instruments was to enshrine fundamental rights and freedoms. It was not the intention to engage in social engineering in the housing field”. In this case the decision of the majority was criticised by Lord Steyn who observed that the ‘The basic misconception in the approach is that it enables domestic ideas of title, legal and equitable rights, and interest, to tint the interpretation of article 8(1). He further highlighted that the decision did not align with the new landscape created by the Human Rights Act 1998.’
The House of Lords in the case of Kay v. Lambeth LBC, reconsidered the issue from the perspective of occupiers having no more than a personal right of occupation. This case is the successor to Bruton v.London & Quadrant housing Trust . In this case, London and Quadrant gave up their interest in the property to Lambert after the hostile judgement in that issue. In this case, Mr Bruton’s successful claim was weakened by this act, putting him and the other residents to become illegal occupiers of the property. Mr Kay who was another occupier of the property, raised his article 8 right, in defence to the council’s claim for possession. In the House of the Lords, Kay was fused with Leeds CC v.Price. This case was a claim for possession by the council against travellers who were unlawful occupiers of a site for a period of two days before a claim was submitted by councils. The parties raised another article 8 defence to the claim and unfortunately both were unsuccessful, although the decision this time was on a borderline.
The ratio of this decision in this case put forward by Lord Hope recognised two openings that occupiers can harness in order to successfully contest the council’s decision. The first opening could be raised if the occupier was capable of demonstrating that there was a compelling case that the law empowering the court to make the possession order was incompatible with Article 8. The second opening gave occupiers the opportunity to ‘contest the decision of a public authority to recover possession as an improper exercise of its powers at common law on the ground that it was a decision that no reasonable person would consider justifiable’. The level at which this defence is raised must be exceptionally arguable.
In essence, the second opening acknowledged that the councils’ decision to evict the occupier was prone to judicial review, but not grounds aligned to the convention is very important. In McCann v. UK, the ECtHR perceived the House of the Lords narrow approach to Article 8 as obnoxious, although the Lords where did not collectively agree with regards to the precision of their pronouncement.
In Manchester CC v. Pinnock due to the unacceptable anti-social behaviour of the children of a secured tenant, the local authority landlord tried to them. An initial application was successfully made by the local authority to the court to demote the status of the tenant thereby removing their secured tenancy position. Subsequently the terms of the current tenancy was breached, encouraging the local authority to terminate the lease and seek possession through the court.
The tenant brought in a claim against the local authority and contended he should be protected by Article 8 against eviction. The Supreme Court reviewed the previous judgements of the House of Lord which was decided in the cases of Qazi, Doherty and Kay individually. The leading Judgement was given by Lord Neuberger. With regards to the ‘applicability of Article 8 in property disputes, his Lordship reached the somewhat inevitable conclusion that “it would be wrong” for the domestic courts to continue fighting against the “clear and constant” Strasbourg view’.
In essence, this implies that domestic court are now bestowed with the power to evaluate the Convention compatibility of decisions completed by a local authority and to make a new judgement, ascertaining whether it would be proportionate to evict an occupier based on their independent evaluation of the facts of the case.
Lord Neuberger stressed that Article 8 deliberations should not be limited to “exceptional cases”, exceptionality being an “outcome not a guide” ; as an alternative, the courts should execute the proportionality test when the occupier raises Article 8. Hence possession proceedings are no more fortified against human rights attacks. The restrictive openings are now more a stumbling block and now in their place we have an extensive opening granting Article 8 unlimited access to land law.
This remarkable change aligns domestic UK law with UK’s convention obligations. ‘It is remarkable, and indeed unacceptable, that the House of Lords had for so long sheltered possessory claims by local authorities from thorough Convention scrutiny’. Lord Neuberger gave support with regards to evaluating the compatibility of an eviction with Article 8. He highlighted two reasons he believed would be important in favour of the authority’s eviction being proportionate; “the existence of the local authority’s “unencumbered property rights”; and the authority’s “right – certainly the obligation … to decide who should occupy its residential property”. This essentially implies that repossession by an authority will almost certainly conform to the Convention.
Importantly, however, and in direct disparity to earlier judgements of the House of Lords, Lord Neuberger recognised that in some cases the occupier’s “personal circumstances” would lead to a different result, for instance, in cases where the occupier is especially vulnerable”.
This perceptive could clarify the ECtHR’s verdict in McCann that Article 8 had been violated. In this case, the local authority convinced an occupier to relinquish her tenancy without explaining the penalties, and later evicted her. Unfortunately, the occupier’s obliviousness perhaps placed her in a position of vulnerability. However, the Supreme Court held that the eviction in Pinnock was proportionate. The relegated tenant, who failed to stop his sons’ antisocial behaviour, had no chance of overshadowing the two factors add weigh in the authority’s favour; firstly, its property rights and secondly, its obligation to manage its housing stock for the benefit of the public in general.
The approach taken by Lord Neuberger with regards to the proportionality test signifies a symphonic balance of principle and practicality. Moving forward, the conclusion that courts should consider the Convention in eviction cases, although correct carried with it two practical risks.
Firstly, the new convention obligations might have been excessively burdened County court judges hearing possession case. However, to mitigate this issue, Lord Neuberger specified that Article 8 should only be deliberated if brought by the occupier. Secondly, there were apprehensions, raised by the House of Lords in earlier cases, that present property rights might have been weakened by occupiers’ increased dependence on Article 8. However, such concerns are dispelled by Lord Neuberger’s acknowledgement that property rights carry momentous weight in the proportionality test. This implies that Article 8 only avoids the execution of current property rights where to do so would abuse another’s particular weakness. With this approach, the direction in Pinnock strikes an exceptionally practical balance between an authority’s property rights and an occupier’s rights under Article 8.
Although the Supreme Court decision in Pinnock has done a great job by bringing clarity to the connection between property law and Article 8, there are still issues with private landlord which was not solved. It is obvious that ‘Lord Neuberger narrowed his judgments to proceedings brought by local authorities, rather than private owners’. It is anticipated that in the future, convention rights through the Human Rights Act 1998 will penetrate property law and be used between private parties.
Article 8 has been dealt with extensively, as regards Article 1, Protocol 1 rights which entitle one’s (natural and legal person’s) right to peaceful enjoyment of property. First Protocol, art 1 states that;
• Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
• The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.
This provision does not afford one a home however it is useful to discuss its significance. The issues around this provision has not been advanced widely. The three examples applicable to this provision are; adverse possession, shared ownership and the rule in Hammersmith and Fulham LBC v.Monk
The issue regarding adverse possession has been clarified in Pye v UK. As regards shared ownership, there are interesting issues arising in the Monk case which have been properly resolved. There are overlaps in certain cases regarding certain issues.
The provision above includes three rights, the first is a general right, the second sentence and the second paragraph are specific instances of interference with right to peaceful enjoyment of property; and the last two are thus interpreted in light of the general principle in the first sentence of the first paragraph. Two major legal issues relating to adverse possession and shared ownership have been discussed in leading cases relating to housing rights. These are controversial topic and the issue with adverse protection has been resolved however the issue with shared ownership still remains an open issue as discussed in Midland Heart v.Richrdson.
As stated previously, human rights law alone cannot eradicate homelessness without effective government policy to house the homeless individuals and families. Fortunately, before the land registration act 2002 (LRA ),homeless individuals could acquire property through either social housing or adverse possession. In essence, this was an opportunity for squatters to get a roof over their head by acquiring property through adverse possession. This is in line with John Locke’s theory of property as possessive individualism. He supported the notion of adverse possession which encourages the adequate use of land and attributed none usage to waste of natural resources.
Unfortunately after 2002, registration of title became the norm and not possession. Subsequently adverse possession was criminalised by the Legal Aid Sentencing and Punishment of Offenders Act 2012 thereby eradicating this avenue of acquiring property. These laws only benefit the wealthy landowners and affects the vulnerable in the society. It also increase homelessness which brings an important question on how we consider what it means to have property in land.
To effectively address this issue land should be regarded as a human need or right and not viewed as a financial instrument. A human rights approach should be adopted when dealing with issues relating to land. A human rights approach recognises that homelessness is more than just a housing issue, and requires a comprehensive and combined approach that takes into account its many and varied causes and effects.
In addition to the property rights discussed in this paper the Homelessness Reduction Act 2017 , has not done much to eradicate or minimise homelessness in the UK. It is said to be merely a re-writing of the homelessness law, policy and practice.
Conclusion
In this paper, the complex interaction between the principles of the ECtHR, the Human Rights Act 1998 and land law was explored extensively. The paper demonstrates that certain precious principles of property law need to be re-aligned in light of the direct enactment of the principles of the European Convention in UK law. It is difficult to say that imaginative property rights on their own are enough to sustain a claim when an individual occupies property as their home and raises a defence built on Article 8.
The exact limitation of the current jurisdiction is unclear, and maybe in the future private bodies such as; private landlords and private tenants, mortgage lenders and receivers will be made to align with the new jurisdiction.
Secondly, although Article 1, Protocol 1 rights could invariable offer the foundation for a supposition that property law is aligned with that article, due to the extensive margin of appreciation the limitations of that particular jurisdiction remain to be completely appreciated.
Finally, in order to adequately eradicate homelessness, it is suggested that a human right approach is deployed. This approach would lead to a much more effective and inclusive outcome
Bibliography
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