3. Letter from the Chairman to Mr Frank Field MP
Housing Benefit (Withholding of Payment) Bill, HC Bill 102
As part of its function to consider human rights in the United Kingdom, the Joint Committee on Human Rights examines all bills introduced to either House with a view to reporting to each House on their compatibility with Convention rights under the Human Rights Act 1998, and with other rights which arise in international law under human rights instruments by which the United Kingdom is bound. The Committee is currently considering the human rights implications of the Housing Benefit (Withholding of Payment) Bill, which you recently introduced to the House of Commons.
As you of course know, the Bill would permit the Secretary of State to withhold housing benefit from any tenant, or any individual living with the tenant, or from any landlord responsible for the property in which the tenant usually resides, subject to certain conditions, namely that the tenant, or any person living with the tenant, has been guilty of anti-social behaviour leading to either
an order being made against him by a magistrates' court, or
his being convicted of a summary offence,
on two or more occasions in any three year period.
The Committee is concerned about the possibility that withholding housing benefit payments might result in the tenant being unable to pay rent, leading to his or her eviction, together with members of his or her family and other members of the household, some or all of whom might be entirely innocent of any wrongdoing. Indeed, the provision for withholding benefit from landlords seems calculated to encourage them to evict tenants who have, or any member of whose family has, been guilty of anti-social behaviour leading to court orders or convictions.
This Committee considers that this potentially raises issues of compatibility with the right to be free of inhuman or degrading treatment (ECHR Article 3), the right to respect for private and family life and the home (ECHR Article 8), and the right to adequate housing (ICESC, Article 11(1)). The Committee examined similar issues in its First Report of Session 2001-02, Homelessness Bill, HL Paper 30, HC 314, in relation to clause 13 of the Homelessness Bill, which excluded certain categories of people, including those guilty of unacceptable behaviour serious enough to make them unsuitable to be a tenant of a local housing authority, from the duty of local housing authorities to house homeless people with priority needs. In its report, a copy of which is enclosed, the Committee concluded that it was appropriate to assess the compatibility of housing provision with human rights in the light of the whole range of sources of support for people in need of housing. Taking account of those sources, including the duties of local authorities under the Children Act 1989 and the provisions of the National Assistance Act 1948, the Committee considered that it should be possible to implement that Bill in a manner compatible with Convention rights, but remained concerned about compatibility with other human rights instruments for reasons which do not apply to the current Bill.
However, the Committee expressed particular anxiety about the position of members of the family of tenants who found themselves homeless as a result of the legislation. In paragraph 9 of its First Report, the Committee drew attention to the requirement under Article 11(1) of the ICESC that housing offered to homeless people should be appropriate to their needs, and indicated that factors relevant to those needs should be kept in mind when deciding whether a person is to be regarded as responsible for his or her own homelessness for the purpose of homelessness legislation. This seems to the Committee to apply equally to the withholding of housing benefit payments. It is particularly important to set out the relevant considerations on the face of the legislation in view of the fact that Article 11(1) of the ICESC is not a Convention right within the meaning of the Human Rights Act 1998, so incompatibility with Article 11(1) could not on its own form the basis of a challenge the legality of a decision to withhold payment.
The Committee is also concerned about the impact of withholding payment on the housing rights of other members of the tenants household, including particularly those who are not children and so are not entitled to the support of the local authority under the Children Act 1989. In paragraph 11 of its Report on the Homelessness Bill, the Committee wrote
... we recognize that local authorities have duties to provide support for children in need under Part III of the Children Act 1989 ... however, there are circumstances in which adult children of the family, too old to be the subject of duties under the 1989 Act, cohabit with parents. If they occupy accommodation of which one of the parents is the tenant, and that parent behaves in such a way as to be treated as unsuitable to be a tenant of the housing authority, the child's education and social life may be disrupted by homelessness and a need to move to a different area. There is no guarantee that the adult child or other members of the family will be allowed to take over the tenancy from the parent who is deemed to be unsuitable to be a tenant.... [This may] interfere unacceptably with the right to respect for the private life and home...of adult children and other members of the family to whom no duty is owed under the Children Act 1989. We consider that this should be borne in mind when deciding how to deal with the families of tenants who fall to be treated as unsuitable.
Equivalent considerations appear to the Committee to apply to the Housing Benefits (Withholding of Payment) Bill. The Secretary of State would have to act compatibly with the right of those affected to respect for private and family life and the home under ECHR Article 8(1), as that is a Convention right which binds public authorities under domestic law by virtue of section 6 of the Human Rights Act 1998. The Committee recognizes that there might well be circumstances in which it would be possible to justify interfering with that right by reference to the considerations set out in ECHR Article 8(2). However, the Committee inclines to the view that the relevant considerations justifying an interference should be set out expressly on the face of the Bill, particularly as they overlap with the considerations relevant to Article 11(1) of the ICESC, mentioned above. It should be noted that the Committee's concerns relate to all members of the household to whom local authorities owed no duty under the Children Act 1989. The Committee is therefore provisionally of the view that the provisions of the Housing Benefit (Withholding of Payment) Bill should expressly require the Secretary of State to consider those matters, in order to minimize the risk that the Secretary of State may take action which would threaten rights guaranteed in international law under the ICESC as well as in domestic law under the Human Rights Act 1998.
In the light of this, the Committee is considering whether to draw the attention of each House to the human rights implications of the Bill. The Committee understands the difficulties which the sponsors of private members' bills, with limited resources, often face in responding to questions from the Committee about the human rights implications of their bills. Nevertheless, without suggesting that you are under any obligation to respond to its concerns, the Committee would of course give full weight to any representations which you might wish to put before it.
The Committee will be deciding on 18 March whether, and if so how, to report to each House on the Bill, and so would be unable to take account of representations received after 13 March. If, however, before that date you wish to indicate that you do intend to respond to the above points, no doubt the Committee would be sympathetic to extending its deadline. If we do not hear from you before then, we will proceed to consider whether to make our report.
6 March 2002