Joint Committee On Human Rights First Report



Memorandum by the Department for Transport, Local Government and the Regions


  1.1  This memorandum is submitted by the Department for Transport, Local Government and the Regions in response to the request for comments on clause 13 of, and paragraph 3 of Schedule 1 to, the Homelessness Bill in a letter from the Chair to the Joint Committee on Human Rights on the Secretary of State for Transport, Local Government and the Regions of 1 September 2001.

  1.2  The Secretary of State for Transport, Local Government and the Regions has made a statement under section 19(1)(a) of the Human Rights Act 1998 indicating that, in his view, the provisions of the Bill are compatible with the Convention rights. He considers that, insofar as any of the Convention rights may be engaged, the proposals are a balanced and proportionate response to a pressing social need and that the judgements he has made about the balance to be struck between competing rights and responsibilities can be objectively justified.

  1.3  The jurisprudence of the European Court of Human Rights ("ECtHR") and the early jurisprudence of the United Kingdom on the Human Rights Act 1998 has established that the legislature and executive have a margin of discretion in forming a view as to whether particular measures are justified within the terms of those articles of the ECHR which permit exceptions.[22]

  1.4  This memorandum is provided in response to the specific questions on the Bill raised by the Committee. Before giving specific responses to those questions it may be helpful if this memorandum sets out the broad public policy context within which the provisions mentioned by the Committee would apply.


  2.1  Social housing is residential accommodation built with government subsidy and offered to let at sub-market rents. Its broad purpose is to provide long-term affordable accommodation for people on low incomes who are unable to secure accommodation in the private market. Since 1988 there have been two main categories of social landlord: local housing authorities ("housing authorities") and housing associations known as registered social landlords ("RSLs"). Housing authorities have strategic responsibility for identifying and meeting housing needs within their area and are governed by legislation.

  2.2  RSLs are private non-profit making companies that provide affordable homes for rent or sale. RSLs are the major providers of new subsidised homes and are regulated by the Housing Corporation, a non-departmental public body. RSLs are required to make available a significant proportion of their lettings to nominees of the housing authority in whose district their properties are located.

  2.3  By section 9 of the Housing Act 1985 (as amended by section 161 of the Local Government and Housing Act 1989), housing authorities have a discretionary power to provide housing accommodation, but not a duty. They have a duty to secure that accommodation becomes available for homeless applicants if certain criteria are met (2.10) but there is no duty to provide it themselves.

  2.4  Until the 1990s all English housing authorities were social landlords and had their own housing stock. Over the last decade, a number of housing authorities have transferred their housing stock to RSLs and Government policy is to allow further expansion of this activity in future. Where stock is transferred, the housing authority contracts with the transfer RSL for a right to nominate tenants for a proportion of subsequent lettings. Where a housing authority retain their own stock it is still usual for them to enter into nomination agreements with the RSLs operating in their district, allowing the authority to allocate tenants for an agreed proportion of RSL lettings.

  2.5  The Government is currently working towards meeting the need for affordable housing, and has substantially increased the resources available for housing investment in England. Resources for 2001-02—around £3.3 billion—are twice the amount made available for 1997-98, and further significant increases are planned for the following two years. However, social housing remains a valuable resource which is in scarce supply in many areas. The demand for social housing far outstrips supply in some areas, particularly in London and the South, and some other urban conurbations where immigrants tend to settle. In April 2000 housing stock in the social sector (England) stood at 4,333,000 properties, with 30 per cent held by RSLs and 70 per cent held by housing authorities. In the housing authority sector, there were just over one million households waiting on housing registers but new lettings during 1999-2000 totalled only 236,000. In London the position is even more acute with almost 200,000 people on housing registers and 28,000 new lettings in 1999-2000. Demand for social housing in London and the South continues to increase, and at 30 June 2001, housing authorities in these areas were accommodating 55,300 households (accepted as statutorily homeless) on a temporary basis pending the availability of long-term social housing for allocation under Part 6. This is almost three-quarters of the national total of 75,300.

  2.6  Where a housing authority decides to provide housing under secure or introductory tenancies, or enters into an arrangement under which it can nominate people to be assured tenants of an RSL property, the housing authority must allocate the housing within its gift in accordance with Part 6 of the Housing Act 1996 ("the 1996 Act"). RSL nominations in accordance with Part 6 are invariably in respect of lettings on full assured tenancies rather than assured shorthold tenancies. By section 159 of the 1996 Act, an authority allocates housing when they select a person to be a secure or introductory tenant of their own housing stock, nominate a person to be a secure or introductory tenant of housing held by another person, or nominate a person to be an assured tenant of housing held by an RSL[23].

  2.7  Housing authorities are under no duty to provide long-term social housing, and consequently no individual has a right to be provided with such accommodation. Moreover, the Convention rights do not include a right to accommodation[24]. However, as mentioned above, housing authorities have certain duties towards homeless people (see paragraphs 2.10 to 2.13). The position as respects the international agreements mentioned on page 3 of the Committee's letter is dealt with in the response to Question 4 in paragraphs 7.4 below.

Allocation of LA housing

  2.8  Part 6 of the 1996 Act does not confer an entitlement to be allocated a home on any individual. It sets out the statutory procedure which housing authorities must follow when allocating housing. The main requirements of the procedure are that housing authorities: (a) must have a housing register; (b) can only place qualifying persons on the register; (c) can only allocate housing to persons on their housing register (with certain exceptions); (d) must publish a scheme for determining which applicants on the register are to receive priority in allocations; and (e) must give reasonable preference in allocations to certain groups of applicant (eg people living in overcrowded or unsatisfactory conditions and families with dependent children).

  2.9  By section 161, persons subject to immigration control are not qualifying persons unless they fall within a class of person prescribed by the Secretary of State. The Secretary of State has the power to prescribe other categories of person as being either qualifying or non-qualifying persons. Subject to the foregoing, housing authorities have the power to decide classes of person who are, or are not, qualifying persons for the allocation of housing. Some housing authorities currently use this discretion to exclude certain groups of applicant such as persons with rent arrears or persons who have resided in the housing authority's district for less than a minimum period.

Homelessness duties

  2.10  Duties under Part 7 of the 1996 Act include a duty to secure accommodation where the housing authority is satisfied that the applicant meets certain criteria. The main homelessness duty (section 193 of the 1996 Act) is to secure that suitable accommodation becomes available for the applicant and his household for a minimum period of two years. The duty can thus be characterised as a duty to secure "temporary accommodation". The criteria are: (1) that the applicant is eligible for assistance (certain persons subject to immigration control and other persons from abroad are ineligible); (2) the applicant is unintentionally homeless and falls within a priority need group; and (3) other suitable accommodation is not available in the district. The priority need groups are households which include dependent children, a pregnant woman or a person who is vulnerable as a result of old age, mental illness, mental handicap, physical disability or other special reason. A person who is homeless, or threatened with homelessness, as a result of a disaster such as fire or flood also has priority need.

  2.11  The duty does not necessarily require a housing authority to provide accommodation itself. By section 206, a housing authority may discharge the duty by providing accommodation itself, by securing that the applicant obtains accommodation from someone else, or by giving the applicant advice and assistance which enables him to secure accommodation from someone else.

  2.12  Applicants owed certain homelessness duties (including s193) have a right to be placed on the local authority's housing register and must be given reasonable preference in the allocation of housing under Part 6[25].

  2.13  Where a housing authority discharges a homelessness duty by providing housing from its own stock any tenancy created cannot be a secure tenancy (and housing provided by an RSL cannot be an assured tenancy). However, short-term tenancies provided as a discharge of a homelessness duty can be converted to a secure tenancy or assured tenancy (as the case may be) by an allocation under Part 6 of the 1996 Act. An allocation under Part 6 brings the homelessness duty to an end.


  3.1  The Bill would amend both Parts 6 and 7 of the 1996 Act. The amendments to Part 7 are intended to strengthen the duties owed to homeless people and remove certain restrictions on how housing authorities and RSLs can use their own stock when dealing with homelessness cases. The amendments to Part 6 are designed to simplify the statutory regime governing housing allocation whilst providing safeguards which enable individual applicants to have their application properly considered, obtain information about how their application is being treated and request a review of certain decisions about their application. The Government hopes that a less restrictive statutory framework will encourage authorities to adopt allocation schemes which allow applicants more choice about their future home in the social sector.

  3.2  In particular, the Bill would repeal the requirement on housing authorities in section 162 of the 1996 Act to have a housing register. One consequence is the repeal of section 161, which includes the current provisions about those who qualify for a housing allocation and the insertion of a new section 160A by clause 13 of the Bill. Taken together new section 160A(1), (3), (4) and (5) in the Bill would, broadly, re-introduce the current provisions in section 161(1), (2) and (3) of the 1996 Act, but without the link to qualifying persons and the housing register.

  3.3  The repeal of section 161(4) would remove the current power which enables housing authorities to decide the classes of person who do or do not qualify for the allocation of housing. The Government is concerned that some housing authorities have made rather extensive use of this broad power to effectively exclude categories of applicants from access to social housing, regardless of housing need. Examples of groups currently excluded are: applicants with rent arrears (however small) and those who have not resided in the authority's district for a minimum period.

  3.4  The broad power in s161(4) would be replaced by the provisions of new s160A(7) to (11) in the Bill, which would significantly limit housing authorities' scope to exclude people from social housing. New s160A(7) would enable housing authorities to decide not to allocate housing to an individual applicant if they were satisfied that he (or a member of his household) was guilty of unacceptable behaviour serious enough to make him unsuitable to be a tenant. However, new s160A(8) would provide that the only behaviour which could be regarded as unacceptable behaviour for this purpose was behaviour which would entitle the authority to a possession order in the courts, if notionally, the applicant was a secure tenant of the authority (or the member of his household was residing with a secure tenant of the authority).

  3.5  New section 161(2A), inserted by paragraph 3 of Schedule 1, is effectively a kind of transitional provision until the repeal of section 161 is brought into force and is intended to come into force on Royal Assent. It would provide that the only classes of person subject to immigration control who could be prescribed in regulations as qualifying persons for an allocation of housing (and therefore eligible to apply to be put on the housing register) were those who were not excluded from entitlement to housing benefit by section 115 of the Immigration and Asylum Act 1999 ("the 1999 Act"). There is no underlying policy change; new section 161(2A) is intended to clarify the current provisions in line with existing policy after doubt was cast on their meaning and effect in judicial proceedings during parliamentary consideration of the Homes Bill (Part 2 of which contained the provision now contained in the Homelessness Bill).[26]


Current position

  4.1  Under s161(2) of the 1996 Act, a person subject to immigration control within the meaning of the Asylum and Immigration Act 1996[27] is not qualified to be allocated housing under Part 6 of the 1996 Act unless he is of a class prescribed by regulations made by the Secretary of State. Section 161(2A) of the 1996 Act, inserted by s117(3) of the 1999 Act, prohibits such regulations being made so as to include classes of person to whom section 115 of the 1999 Act applies. Section 115 applies to certain persons who, subject to prescribed conditions, are excluded from certain state benefits, including housing benefit. These persons are defined as "persons subject to immigration control" for the purpose of section 115. The section 115 definition is narrower than the definition under the Asylum and Immigration Act 1996. Broadly the persons defined for the purpose of section 115 includes asylum seekers, illegal entrants, those who have overstayed their leave to remain and those allowed to enter subject to a condition of no recourse to public funds.

  4.2  It is a requirement of the Immigration Rules that those admitted to the UK for a temporary purpose should be able to support and accommodate themselves without recourse to public funds.[28] Persons from abroad with limited leave to remain in the United Kingdom are normally subject to a condition prohibiting recourse to public funds. Where a person is granted leave to remain exceptionally outside the Immigration Rules that leave may be granted without such a condition.

  4.3  The benefits included in the current list of "public funds" are non-contributory. So normally where a person is free to take employment and has made the appropriate level of National Insurance contributions he may qualify for certain benefits other than those listed in Section 115 of the 1999 Act, such as contributions-based jobseekers allowance. This ensures that those overseas nationals who are paying NI contributions can benefit from the entitlements that flow from their contributions. If a person subject to a prohibition is granted leave to remain indefinitely in the United Kingdom the conditions are removed from their stay and they will become entitled to claim benefits in the same way as a British Citizen.

  4.4  It can be seen, therefore, that the policy on eligibility for social housing is part of the Government's wider policy on access to certain state benefits by persons subject to immigration control. As such persons are admitted to the UK only on condition that they are able to maintain and accommodate themselves and any dependants without recourse to public funds, it is considered legitimate to deny them access to such benefits, provided that there are adequate safeguards to prevent them being required to leave the United Kingdom when that would be in breach of their human rights.

  4.5  Restricting access to certain benefits, including long term social housing, for those who have been admitted for a temporary period and who have been granted leave on the condition that they do not have recourse to public funds, or denying benefits to those in the country illegally, is not regarded as incompatible with the Convention. If such a person finds they are unable to support themselves, they have no basis to remain in the United Kingdom and should leave. If removing or requiring the person to leave the United Kingdom would be in breach of the Refugee Convention or the ECHR then they can make a claim for asylum or a claim that their removal would be in breach of Article 3 ECHR. From the time that claim is recorded, to the time it is finally determined (including during any appeal) the person will, if they are destitute, be able to apply for support under section 95 of the 1999 Act.

  4.6  Regulation 4 of the Allocation of Housing (England) Regulations (SI 2000 No 702) provides, inter alia, that the following classes of person are prescribed as qualifying under s161(2): (a) a person recorded as a refugee; (b) persons granted exceptional leave to enter or remain in the UK without a condition of no recourse to public funds; (c) a person who has current leave to enter or remain in the UK with no limitation or condition and who is habitually resident in the Common Travel Area (with certain exceptions); (d) a person who left Montserrat after 1 November because of the effect of volcanic eruption; and (e) a person who is habitually resident in the Common Travel Area and is either (i) a national of a state which has ratified the European Convention on Social and Medical Assistance (ECSMA) or ratified the European Social Charter (ESC) and is lawfully present in the UK, or (ii) a national of a state which is a signatory to the ECSMA or the ESC and who, before 3 April, was owed a duty under the homelessness legislation which is still extant.

The policy under the Homelessness Bill

  4.7  No policy change is proposed. The effect of new section 160A(3) and (4) would be the same as current section 161(2) and (2A).


Current position

  5.1  Section 161(3) of the 1996 Act gives the Secretary of State the power to prescribe classes of persons other than persons subject to immigration control who are, or are not, qualifying persons for the allocation of housing by housing authorities. Regulation 6 of the Allocation of Housing (England) Regulations (SI 2000 No 702) provides that, with certain exceptions[29], a person who is not habitually resident in the Common Travel Area[30] is not a qualifying person. In practice, this restriction applies to all persons who are EEA nationals, and conforms to the Government's broader policy on access to non-contributory social security benefits for persons who are not habitually resident in the Common Travel Area. Such persons would generally be expected to accommodate and maintain themselves while in the UK. Non-contributory benefits include housing benefit and it would be unreasonable to expect housing authorities to accommodate persons who, if unable to meet their rent obligations, would be ineligible to claim assistance by way of housing benefit. Where the circumstances of a person within this prescribed class become such as to enable "habitual residence" to be established, that person would be eligible for benefits and for an allocation of housing.

The policy under the Homelessness Bill

(a)  a worker for the purposes of Council Regulation (EEC) no 1612/68(d) or (EEC) No 1251/70(e);

(b)  a person with a right to reside in the United Kingdom pursuant to the Immigration (European Economic Area) Order 1994(f) and derived from Council Directive No 68/360/EEC(g) or No 73/148/EEC(h);

(c)  a person who left the territory of Montserrat after 1 November 1995 because of the effect on that territory of a volcanic eruption.

  5.2  No policy change is proposed. Clause 13 repeals section 161(3) (along with other provisions relating to the housing register) and replaces it with new section 160A(5). The powers in each are equivalent.


Current position

  6.1  As mentioned above, by section 161(4) of the 1996 Act, housing authorities have the power to decide what classes of person are, or are not, qualifying persons for the purpose of housing allocation. This effectively allows housing authorities to exclude a range of different groups of applicants from social housing, but does not allow them to exclude applicants on an individual basis. The effect is that where an applicant falls within a class of non-qualifying persons (eg persons with rent arrears), the housing authority rejects the application and does not make a balanced decision based on consideration of the particular circumstances of the case (eg weigh the degree of housing need against the severity of the rent arrears).

The policy under the Homelessness Bill

  6.2  Clause 13 would repeal section 161(4) and replace it with the provisions in new section 160A(7) to (11). The policy is that housing authorities should not have a blanket power to exclude groups of persons from applying for an allocation of housing. A guiding principle underlying the proposals in the Bill is that everyone should have a right to apply to a housing authority for social housing, and have their application properly considered in accordance with the housing authority's published scheme, except those who are ineligible to apply for the specific policy reasons set out in this memorandum.

  6.3  Whilst removing the current, very wide power to exclude, clause 13 will also provide housing authorities with an explicit power to decline to allocate housing to individual applicants who are guilty of serious unacceptable behaviour. As set out above, this behaviour is defined by reference to behaviour which would provide statutory grounds for a possession order in the courts. This policy is part of the Government's wider policy on tackling anti-social behaviour and ensuring that the relevant agencies have the means of dealing with it. The test of behaviour which would entitle the authority to a possession order is a high test, and will ensure that authorities will be able to decline only those applicants whose behaviour would genuinely render them unsuitable to be a tenant. This provision will enable housing authorities to protect the rights of their existing tenants and others to the peaceful enjoyment of their home and neighbourhood.

  6.4  In their letter of 1 September, the Committee suggested that the provisions of the proposed new section 160A would allow no discretion to the local authority. In fact, the provision in new section 160A(7) is a discretionary power. Housing authorities are not required to treat any applicant as ineligible under that power but, where they decide to do so, they would be prevented from allocating accommodation to the applicant. The power would have to be exercised compatibly with the Convention rights in particular cases (of section 6(1) of the Human Rights Act 1998).

  6.5  Where an applicant who is eligible for an allocation of housing under Part 6 has a spouse or partner who is ineligible by virtue of s160A(3) or (5), the housing authority would have to consider the application and take account of the presence of the ineligible partner when considering whether reasonable preference should be given to the applicant under section 167 of the 1996 Act. In allocating accommodation the housing authority would have the power (and would be expected) to take account of all members of the applicant's household—including the ineligible partner—when assessing what accommodation would be suitable. However, where a housing authority allocated accommodation to a household which included an ineligible person, new s160A(1)(c) would prevent the authority from allocating a joint tenancy which included the ineligible person as a tenant. Section 160A(1)(c) would prevent a housing authority allocating a joint tenancy which included the ineligible person but it is important to realise that this would not prevent the housing authority providing accommodation for the whole household.

Other assistance that may be available to ineligible persons

  6.6  The categories of person subject to immigration control who would be ineligible for the allocation of housing under current policy include asylum seekers. Under Part 6 of the 1999 Act the Government has implemented a comprehensive system for providing accommodation and/or support for asylum seekers who are homeless and/or destitute until their asylum claim has been finally determined. The same system is available to anyone who claims that his rights under Article 3 ECHR would be breached if he were removed from, or required to leave, the UK.

  6.7  Other persons ineligible for a housing allocation under new section 160A(3) or (5), or treated as ineligible under new section 160A(7), may be able to have recourse to assistance under the National Assistance Act 1948 or the Children Act 1989. Persons treated as ineligible under new section 160A(7) are eligible for housing benefit.

  6.8  The nature and availability of the assistance which may be provided to each of the categories of person ineligible, or treated as ineligible, for a housing allocation, is discussed in greater detail in the responses to the Committee's specific questions in the next section of this memorandum.


Question 1: What steps will be taken to ensure that the provisions in clause 13 of the Bill do not cause any person to be a victim of a violation of the right to be free of inhuman or degrading treatment contrary to ECHR Article 3?

  7.1.1  Those who would be classed as ineligible under s160A can be differentiated into separate categories, and it is useful to consider their situations individually:

i.  S160A(3)—Persons subject to immigration control

(a)  Asylum Seekers:

  7.1.2  Asylum seekers are treated differently from other persons subject to immigration control. The Government has implemented comprehensive new arrangements to meet the needs of those seeking asylum in the UK under the 1999 Act. Relief through the National Asylum Support Service is made available to them under Part 6, and depending on the applicant's circumstances and needs will consist of subsistence only, subsistence and accommodation or accommodation only. Where accommodation is provided the costs of this, together with council tax and utilities, is provided centrally. This support is available to the asylum seeker until the final decision is taken on their application for asylum (this includes any appeal) and for 14 days thereafter. A further commitment is offered to asylum seeking families with children, who in the event of an unsuccessful application, will continue to receive support until such time as they leave the United Kingdom.

  7.1.3  All accommodation provided under contract to NASS is expected to meet a strict specification laid down by NASS in consultation with others including the Refugee Council. The accommodation is basic but is expected to provide sufficient furniture and equipment and is subject to inspection by NASS.

(b)  Other persons subject to immigration control

  7.1.4  States have the right under international law to control the entry, residence and expulsion of aliens, subject always to any international treaty obligations, including the Convention and, especially, Article 3.[31] In order to fall within the scope of Article 3, mistreatment must attain a minimum level of severity.[32] The fact that a homeless person, with a medical condition, was forced to sleep on the streets has been held by the ECtHR not to attain the requisite level of severity to engage Article 3.[33] Even if it had, the Court is ready to take into account the behaviour of the applicant under the Convention and the extent of his own responsibility for his condition.[34] In D v UK (involving an alien subject to deportation following a period in prison) the Court, exceptionally, found a breach of Article 3 on the grounds of compelling humanitarian considerations, but emphasised that:

    "aliens who have served their prison sentences and are subject to expulsion cannot in principle claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance provided by the expelling State during their stay in prison."[35]

  Applying this reasoning to persons subject to immigration control, they should not, in principle, be able to rely on their unlawful conduct to claim an entitlement to housing allocated by housing authorities. If they fall into difficulties, such persons should, in principle, leave the United Kingdom and return to their country of origin or a third country.

  7.1.5  Nonetheless, other statutory provisions may be available to support those who are unable to leave the United Kingdom.

National Assistance Act 1948

  7.1.6  Section 21(1)(a) of the National Assistance Act 1948 ("the 1948 Act") provides that local authorities may, or shall to the extent that the Secretary of State can direct, make arrangements for the provision of accommodation for adults "who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them". The domestic courts, having regard to humanitarian considerations, have given the words "any other circumstances" a wide meaning.[36]

  7.1.7  Whether illegal immigrants and other persons subject to immigration control are entitled to benefit is a matter of fact and of statutory construction in each case. Although it has been held that it is wrong in principle that a man could rely on his own unlawful act to secure an advantage which could not have been obtained had he acted lawfully, such a person would be entitled to assistance under s21 of the National Assistance Act 1948 where he could not undertake the journey out of the UK without risk to his life or serious injury to his health (thus falling into the "any other circumstances" category).[37] This still appears to be the case, notwithstanding section 21(1A) of the 1948 Act (inserted by section 116 of the 1999 Act) which provides that a person to whom section 115 of the 1999 Act applies may not be provided with residential accommodation under section 21(1) if his need for care and attention has arisen solely because he is destitute or because of the physical effects, or anticipated physical effects, of his being destitute.[38] Therefore, although an individual in this category would be precluded if their need for assistance has arisen "solely" from destitution, if their situation is made more acute by other circumstances then it is likely that they will be entitled to benefit. This would mean that those individuals who would be considered as "responsible for their own suffering", but who could not actually leave this country to alleviate their suffering, could receive support under the 1948 Act.

Children Act 1989

  7.1.8  Under the Children Act 1989 ("the Children Act"), social service authorities have a duty to safeguard and promote the welfare of children within their area who are in need. This could include the children of persons who fall within s115(9) of the 1999 Act. It is for the local authority to assess the needs of the children and they have the power to provide accommodation and other appropriate support for the children and their families where they consider this is in the child's best interests. This support can in exceptional circumstances include money to provide essential items of food, clothing and furniture. (Households receiving support under s122 of the 1999 Act may not receive support under the Children Act.)

ii.  S160A(5)—Other persons from abroad prescribed in the regulations

  7.1.9  The Government's policy is that persons not habitually resident in the Common Travel Area should not be eligible for non-contributory benefits including long-term housing allocated by housing authorities. Where such persons find themselves without a home, they should, in principle, leave the United Kingdom and return to their country of habitual residence or a third country. Persons within this category are, however, not excluded from the duty on local authorities under section 21(1) of the 1948 Act and so would be eligible for residential accommodation under that section if they met the criteria in that subsection as explained in paragraphs 7.1.6 and 7.1.7 above. Those with children would also fall within the protection of the Children Act, as explained above in paragraph 7.1.8.

iii.  S160A(7)—Those treated as ineligible on the basis of having been guilty of unacceptable behaviour serious enough to make him unsuitable to be a tenant of the authority.

  7.1.10  In the Government's view, being treated as ineligible for the allocation of housing accommodation by housing authorities would not lead to inhuman or degrading treatment and therefore would not engage with Article 3 ECHR rights. Any persons so treated would, in any event, be eligible for assistance under other statutory provisions. They would be able to make an application for housing benefit if that were needed to enable them to afford to secure accommodation for themselves in the private sector. If they become homeless, or threatened with homelessness, they would be eligible to apply for assistance provided under Part 7 of the 1996 Act. As a final safety net they would also be able to claim assistance under section 21 of the 1948 Act, as explained above in paragraphs 7.1.6 and 7.1.7 in relation to persons from abroad. Furthermore, those with children would fall within the protection of the Children Act, as also explained above.


  7.1.11  The Government does not consider that the provisions in clause 13 of the Bill would cause Article 3 to be violated. As mentioned above, there are statutory safety net provisions which would apply as respects those whom a housing authority decided to treat as ineligible for an allocation of housing by virtue of new section 160A(7). Those ineligible by virtue of new section 160A(3) and (5) and unable to seek assistance under other provisions would be expected to leave the UK, although those unable to do so and in need of care and attention would be eligible to receive help under the National Assistance Act 1948. Those ineligible because they were asylum seekers would be able to seek assistance from NASS under section 95 of the Immigration and Asylum Act 1999. It is not considered that further steps are required.

Question 2: What factors satisfied you, when making the statement of compatibility in respect of the Bill under section 19 of the Human Rights Act 1998, that any impact of the provisions of clause 13 of the Bill on the right to respect for private and family life would be a proportionate response to a pressing social need to pursue one of the legitimate aims in ECHR Article 8(2)?

  7.2.1  As mentioned above, housing policy is an area where a national legislature must be accorded a wide margin of appreciation.[39] The factors relevant to proportionality for the purposes of ECHR Article 8(2), differ depending on which category of applicant is being considered; but with each category the government considers that s160A strikes a fair balance between the general interest of the community and the interests of the individuals likely to be affected by its provisions.

S160A(3)—Persons subject to immigration control

S160A(5)—Other persons from abroad in a class prescribed by regulations

  7.2.2  It was explained above (see paragraph 2.5) that long term social housing is a valuable commodity in high demand, and relatively short supply, in many parts of the country. The Government therefore considers it reasonable and justifiable to restrict access to such housing to those who are settled in the UK and habitually resident and those granted exceptional leave to remain. Treating these groups differently is legitimate because of the need to ensure the economic well-being of the country, by protecting public resources; to prevent crime by reducing the incentive for people to come to Britain illegally and to protect the rights and freedoms of others to limited public funds.

S160A(7)—Those treated as ineligible on the basis of unacceptable behaviour serious enough to make them unsuitable to be tenants of an authority

  7.2.4  New section 160A(7) is one strand in the Government's overall policy of dealing with anti-social behaviour. It meets the legitimate aim of the protection of the rights and freedoms of others, in particular, those who are already tenants and corresponds to a pressing social need.

  7.2.5  Among the factors relevant to the question whether the provision, and its impact is a proportionate response are the following:

    —  Authorities will have a discretion whether to treat people as ineligible by virtue of new section 160A(7) and that discretion will, in any particular case, have to be exercised in accordance with the Human Rights Act 1998.

    —  The kind of "behaviour" which can give rise to a person being treated as ineligible is limited to that defined in new section 160A(8) which is explicitly linked to behaviour which would be grounds for a court to issue a possession order if the applicant was an existing tenant. In addition, the behaviour has to be serious enough to make an applicant unsuitable to be a tenant.

    —  The authority has to be satisfied about an applicant's unsuitability "in the circumstances at the time the application is being considered". This is intended as a safeguard against the use of "stale" behaviour in reaching a decision.

    —  Applicants are able to make a fresh application to the local housing authority under new s160A(11) if they consider that they should no longer be treated as ineligible.

All categories

  7.2.6  Among the other factors relevant to the proportionality of the response are:

    —  the availability, in some cases, of support or assistance (including accommodation) under other statutory provisions. For the availability of such assistance under Part 6 of the 1999 Act, section 21 of the 1948 Act and the Children Act, the Committee is referred to the response to its first question (paragraphs 7.1 above). Those in the section 160A(7) category are not excluded from housing benefit;

    —  the requirement for an authority to notify its decision on eligibility and the grounds for it and the existence of a review procedure which enables an authority to look again at issues of law or fact which have led to its decision on eligibility.[40]


  7.2.7  The Secretary of State is satisfied that, taking all factors into account, any interference with Article 8 rights by the Homelessness Bill is a justified and proportionate response to a pressing social need.

Question 3: What factors satisfied you, when making the statement of compatibility in respect of the Bill under section 19 of the Human Rights Act 1998, that any impact of the provisions of clause 13 of the Bill on persons from abroad would not amount to discrimination within the meaning of ECHR Article 14?

  7.3.1  Article 14 is not a freestanding prohibition of discrimination in general. It provides for a right not to be discriminated against only in respect of the other rights laid down in the ECHR. As the answers to Questions 1 and 2 show, the government does not believe that Article 3 or Article 8 are breached by clause 13 of the Bill. Nonetheless Article 14 applies if the facts at issue fall within the ambit of another convention right.[41] Assuming, that either Article 3 or Article 8 is at issue, the government considers that there is no breach of Article 14, based on the reasoning of the ECtHR in Abdulaziz, Cabales and Balkandali v UK (1985).[42]

  7.3.2  The new section 160A(1)(a) is an aspect of the Government's general immigration policy so far as it is connected with access to "public funds" (which includes housing). As a matter of international law, a state has the right to control the entry of non-nationals into its territory. This is subject to its Treaty obligations to ensure that controls are exercised consistently with the Convention. The ECtHR recognised that most immigration policies of Contracting States differentiated people on the basis of their nationality and indirectly their race, ethnic origin and colour. While a state cannot implement "policies of a purely racist nature" it could, for example, give preferential treatment to nationals and to persons from countries with which it had close links. Within the category of "persons from abroad" who would be ineligible for an allocation of accommodation, there is no further differentiation between individuals or groups on the basis of race or ethnic origin. Insofar as clause 13 could be argued to give rise to a difference in treatment as respects "persons from abroad", the Government considers, for the reasons developed in its answers to Questions 1 and 2, that any difference has an objective and reasonable justification, pursuing a legitimate aim with a reasonable relationship of proportionality between the means employed and the aim sought to be realised[43].

Question 4: Do you consider that the implementation of the provisions of clause 13 of the Bill will conform to the United Kingdom's international obligations under the human rights treaties referred to above; and, if you do, what considerations lead you to that view?

  7.4.1  The government considers that section 160A of the Homelessness Bill is in line with the United Kingdom's obligations under the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Convention on the Elimination of Racial Discrimination (ICERD). In particular, it does not consider that the treatment of the categories of people referred to in section 160A would constitute discrimination for the purposes of ICESCR or ICERD.

  7.4.2  ICERD specifically relates to racial discrimination, and contains a provision stating that the Convention does not apply to distinctions made between citizens and non-citizens (Article 1(2)). Those in section 160A(1)(b) have been singled out as a result of serious "unacceptable behaviour . . ." so ICERD is not relevant to them. Section 160A(1)(a) covers foreign nationals and EEA nationals, including British nationals, coming from abroad who are not habitually resident in the Common Travel Area. Singling out of foreign nationals would be permitted by Article 1(2). Even if this is not the case, singling out these groups of individuals would not constitute discrimination under international law, provided that there were good reasons, or sufficient justification, for this difference in treatment, (as to which see paragraph 7.4.4). Section 160(1)(c) prevents an allocation to two or more persons jointly if any of them falls within categories (a) or (b). It does not, however, prevent an allocation to any person who does not fall within either of those categories. Thus a person not within the category in s160A(1)(a) could be allocated a tenancy even if a person within that category was a member of his household. They could reside together by virtue of the tenancy granted to the person who did not fall into the ineligible category. They would not, however, be able to be joint tenants. The aim is to prevent any person who is not eligible for an allocation in their own right being allocated accommodation jointly with someone else. For reasons given in paragraph 7.4.4 this is seen as being reasonable and justifiable and is not considered to give rise to discrimination.

  7.4.3  The ICESCR applies to a much broader range of rights than ICERD and does not contain a provision like Article 1(2) of ICERD. In Article 2 of the ICESCR, states guarantee that the rights in the Covenant will be exercised without discrimination of any kind as to race, colour, national origin etc (but this list is not exhaustive). We do not consider that section 160A constitutes discrimination for the purposes of the ICESCR. It is generally accepted that not all differences in treatment will necessarily amount to discrimination. ECHR case law on this subject indicates that the determining factor is whether there is objective and reasonable justification for the distinction.

  7.4.4  There would appear to be good reason for singling out those in section 160A(1)(a) since the Homelessness Bill gives effect to an aspect of the Government's policy on access by immigrants to "public funds" and is designed to mirror provisions in social security legislation which adopts the same categorisation for the purpose of determining entitlement to housing and some other state benefits. Many States in fact operate different systems of social security in relation to non-nationals, particularly where reciprocal agreements are in force. Singling out those in section 160A(1)(b) is also justifiable objectively and reasonably on the basis that the same behaviour would be grounds for a court to issue a possession order if the applicant was an existing tenant. Singling out those in section 160(1)(c) (which aims to prevent persons ineligible in their own right being able to be allocated jointly with someone eligible) is seen as being reasonable and objectively justifiable for the same reasons as apply in respect of those in section 160A(1)(a) and (b). A person who is otherwise eligible can be allocated housing provided it is not jointly with an ineligible person.

  7.4.5  For these reasons, new section 160A is not considered to give rise to a breach of either treaty.

Question 5: Finally, the Committee would like to know, please, what representations you have received in connection with this Bill in relation to human rights issues, and to what specific points these representations were directed?

  7.5.1  The Department for Transport, Local Government and the Regions has received no representations in connection with this Bill in relation to human rights issues.

22   In particular, housing policy is an area where a national legislature must be accorded a wide margin of appreciation. See R (Johns & McLellan) v Bracknell Forest DC (2000) 33 HLR 495, at 511 (citing Mellacher v Austria (1989) 12 EHRR 391). Back

23   Where a tenant does not wish to give up a secure or introductory tenancy or a full assured tenancy, it can only be terminated by a court order (in the case of secure or assured tenancies) on specified statutory grounds. If an introductory tenancy is not terminated within the "trial period" (usually one year) it becomes a secure tenancy. For these reasons, a Part 6 allocation is described as long-term housing. Back

24   Article 8 does not go as far as imposing a positive obligation on states to provide an individual with a home. See Marzari v Italy (1999) 28 EHRR 330 and (to be published) Chapman v UK (2001) and O'Rourke v UK (2001). Back

25   See The Allocation of Housing (Reasonable and Additional Preference) Regulations 1997 (SI 1997/1902) made under section 167(3) of the 1996 Act. Back

26   Kaya v LB Haringey (2001) [Transcript 1 May 2001]. As it happens the Court of Appeal did not find it necessary to reach a view on this point. Back

27   Section 13 of the Asylum and Immigration Act 1996 provides that "persons subject to immigration control" means a person who under the Immigration Act 1971 requires leave to enter or remain in the United Kingdom (whether or not such leave has been given). Back

28   The current Immigration Rules are contained in the Statement of Changes in Immigration Rules laid before Parliament on 23 May 1994 (HC395), as amended. Paragraph 6 contains the definition of "public funds", which includes housing. Back

29   The exceptions are: Back

30   The Common Travel Area is the United Kingdom, the Republic of Ireland, the Channel Islands and the Isle of Man. Back

31   See, for example, D v UK (1997) 24 EHRR 423 (paragraph 46 of judgment). Back

32   See, for example O'Rourke v UK (App No 39022/97, declared inadmissible 26 June 2001), quoting Ireland v UK (1978) Series A no 25, para 162). Back

33   See O'RourkeBack

34   See O'RourkeBack

35   See para 54 of the judgment. Back

36   eg R v Hammersmith and Fulham LBC ex parte M (1998) 30 HLR 10 (destitute asylum seekers). Back

37   R v Brent LBC ex parte D (1997) HLR 10. Back

38   In O v Wandsworth LBC: Bhikha v Leicester CC (2000) 33 HLR 419, the Court of Appeal held-(a) that, a person subject to immigration control applying for assistance under section 21(1) of the 1948 Act is only precluded by section 21(1A) when his need arises solely from destitution; where the need is made more acute by some other circumstance than mere lack of accommodation or funds (including age, illness or disability) he will qualify for assistance. Once again having regard to humanitarian considerations, the court also held that section 21 provides the last possibility of assistance and, as such, not even the public policy ground of illegality should bar an applicant who would otherwise qualify for assistance. Back

39   See footnote 1, paragraph 3.1. Back

40   See new section 160A(9) and (10), inserted by clause 13(2), and new section 167(4A)(c), inserted by clause 15(4). Back

41   Rasmussen v Denmark (1985) 7 EHRR 371. Back

42   7 EHRR 471, in particular, paragraphs 67, 72 and 84. Back

43   See the cases cited in Abdulaziz, Cabales and Balkandali, at paragraph 72. Back

previous page contents

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2001
Prepared 7 November 2001