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A right to housing in Wales

What would it mean to make a right to adequate housing part of Welsh law? Simon Hoffman outlines the changes that would be needed and what the impact would be.

Housing meets the need for shelter. It is somewhere to call home, a base for employment, education or retirement, or to raise a family. Decent housing is essential for personal dignity and wellbeing. It is therefore unsurprising that the right to adequate housing is guaranteed by international human rights law. In this short article I put the case for the right to adequate housing to be made part of Welsh law through the exercise of devolved powers.

The Universal Declaration on Human Rights 1948 (UDHR) provides a useful starting point. It encapsulates what ought to be amongst the aspirations of all civilised governments, namely to promote ‘social progress and better standards of life’.[i] Article 25 of the UDHR declares that everyone should enjoy a standard of living adequate for the health and wellbeing of themselves and their family, including housing.

The UDHR is declaratory and aspirational. It is given legal form in the International Bill of Rights, which includes the Covenant on Economic Social and Cultural Rights 1966 (CESCR).[ii] Article 11 of the CESCR guarantees everyone the right to adequate housing.The UK government has signed the CESCR and is under a duty in international law to fully realise the rights it contains for everyone in the UK. The devolved administrations, as manifestations of the state at local level, are required to contribute to this objective. To help understand what this means for housing policy we can turn to guidance issued by the UN Committee on Economic, Social and Cultural Rights, which monitors compliance with the CESCR globally, including in the UK.

Contrary to popular belief, the right to adequate housing does not require the state to provide housing for all. Instead, housing policy should pursue ‘enabling strategies’ to help realise the right to adequate housing for everyone through a range of housing options. Particular attention should be given to disadvantaged groups who are to be afforded ‘some degree of priority consideration in the housing sphere’ to ensure ‘full and sustainable access’ to adequate housing. The committee’s guidance extends to discussion of different elements that contribute to the right to adequate housing. These include: affordability, suitability, security of tenure, and property condition. Of course, these are all appropriate concerns for housing policy in Wales.

Given the breadth of coverage of the right to adequate housing, the UN Committee recognises that even in well-off societies full realisation of the right may need to be achieved over time and as resources permit. However, the committee has emphasised that all governments are nonetheless under an immediate obligation to establish clear policy objectives with the intention of making progress toward realising the right to adequate for all, and to identify what resources will be allocated to support  implementation.[iii] Despite this, for many in the UK, including in Wales, the right to adequate housing remains an illusion due to a lack of affordable housing, homelessness, insecurity of tenure, poor housing conditions, overcrowding, and a discriminatory housing market which prejudices those living in poverty and/or those from disadvantaged social groups.

The gap between the right to adequate housing and the reality of housing provision has been noted by the UN Committee during its periodic examination of implementation of the CESCR in the UK.[iv] While the committee has advised the UK government on action to improve compliance, it has no powers to enforce its recommendations. The CESCR is international law not domestic law, and as a result UK judges are similarly powerless to enforce the rights it contains.

Many, myself included, see a need for action to bridge the gap between the international right to adequate housing, and housing policy in the UK, including in Wales. This could be achieved by incorporating the right in domestic law. Successive UK governments have refused to contemplate this step, so the Welsh Government needs to act independently to ‘bring home’ the right to adequate housing in Welsh law. This would be entirely consistent with the Welsh Government’s voiced support for human rights as the basis of good government in Wales.

We know that the commitment to human rights in Wales is more than rhetorical. Legislation introduced by ministers and enacted by the National Assembly for Wales promotes international human rights. Most notably the Rights of Children and Young Persons (Wales) Measure 2011 incorporates the UN Convention on the Rights of the Child in Welsh law, obliging ministers to have ‘due regard’ to children’s rights when exercising any of their functions.[v]  Other progressive steps include a Declaration of the Rights of Older People in Wales,[vi] and legislation on social care, and education  which requires public authorities to have due regard to the rights of children, older people and disabled people.[vii]

Legislation could be introduced to impose a duty on Welsh ministers to have due regard to the right to adequate housing. This would require ministers to take full account of the various aspects of the right when exercising their policy functions. Accountability for compliance with this duty would be two-fold: first, civil society and the National Assembly would be able to scrutinise how ministers have taken account of the right in proposals for policy and legislation; and, second, there would be judicial oversight by way judicial review.

Judicial oversight would help ensure that ministers adopt suitable procedures to take proper account of the right to adequate housing in the exercise of their functions. Importantly however, the due regard formula would allow ministers to strike a balance between competing policy priorities, taking account of local need, available resources and long-term planning.[viii] A due regard duty would ensure close attention to the objectives of adequate housing, in particular for the most disadvantaged, but the duty is not prescriptive of policy choices and would allow space for policy to address other priorities (including human rights other than the right to adequate housing).

It will be observed that I propose a duty on ministers. Although human rights are the responsibility of all tiers of government, they are aimed primarily at those institutions with overall control of policy. In Wales, housing policy is established by the Welsh Government so the due regard duty should apply initially to them. However, ministers could decide to extend the duty to other authorities through sectoral legislation. This is what has taken place subsequent to the Child Rights Measure as legislation has been introduced to require public authorities with social care and education functions to have due regard to children’s rights.[ix]

Incorporation of the right to adequate housing in Wales using the due regard formula would be straightforward, but what difference would it make? This is an interesting question given that progress has been made in Wales in recent years, especially since the introduction of the Housing (Wales) Act 2014. Much of the 2014 Act is consistent with the right to adequate housing. For this reason, it is not argued that incorporation of the right in Welsh law would result in wholesale radical changes to housing policy. Instead, I suggest that the value of incorporation would be to promote further reform toward a more human rights consistent housing environment in Wales, especially in areas where difficult choices have to be made about the priorities for housing policy. Two brief examples will help illustrate the point.

The first concerns homelessness legislation. As is well known, when a person who is homeless applies to local authority for housing assistance, the authority must decide if they made themselves intentionally homeless. A finding of intentionality has a significant impact on many aspects of the right to adequate housing. Inevitably it results in denial of access to social housing and limits support provided by the local authority. It usually means the household concerned has to rely on the private rental sector (PRS) where tenure is insecure, rents are often unaffordable, and housing conditions often poor.

The 2014 Act gives each local authority in Wales the power to decide whether they will apply the intentionally test. Although at the time the 2014 Act was being drafted arguments were put forward to abandon intentionality altogether, this was not accepted. While the use of intentionality has declined since the 2014 Act came into effect,[x] all local authorities in Wales have decided to retain intentionality as an aspect of their homelessness decision-making. The 2014 reform of housing legislation in Wales missed an opportunity to introduce a homelessness framework more consistent with the better realisation of the right to adequate housing.

The punitive nature of intentionality is inconsistent with realisation of the right to adequate housing and undermines access to the right for households affected. A minister under a duty to have due regard to the right to adequate housing would be obliged to this into account when deciding housing policy and/or proposals for reform of legislation.

It is speculation to suggest that had such a duty been in place when the 2014 Act was under discussion it would have resulted in a ministerial decision to abandon intentionality for all local authorities. However, this is certainly what a proper appreciation of the adverse impact of intentionality on the different aspects of the right to adequate housing would (strongly) suggest. Should a ministerial duty to have due regard to the right to adequate housing be introduced in Wales in the future, this would place the issue of abandoning intentionality firmly back on the housing policy agenda as a matter for the Welsh Government rather than individual local authorities.

The second example concerns tenure reform. The Renting Homes (Wales) Act 2016, like the 2014 Act, makes several reforms consistent with the right to adequate housing. However, under the 2016 Act no-fault eviction continues to be available to landlords in the private rented sector. This means that a tenant of a private landlord is only guaranteed six months’ occupation. Beyond this their continued occupation is at the discretion of the landlord. This undermines long-term security of tenure.

The approach taken in the 2016 Act reflects the view of the Law Commission which examined renting in Wales in 2013. The Commission argued that it is inappropriate to require private landlords to meet the same obligations as social landlords.[xi]This is a reasonable argument. However, tenure reform need not imply that the PRS regime should provide the same security as is available to tenants in the social housing sector. Instead, tenants in the private rented sector should enjoy security of tenure so that that they can live in ‘security, peace and dignity’.[xii]

If the right to adequate housing were incorporated in Welsh law the Welsh Government would be duty bound to take this requirement into account and pursue policies to give it effect. A proper appreciation of the right to adequate housing in application to the private rented sector does not mean tenure security equivalent to social housing, but it should – if properly implemented – mean an end to no-fault evictions. At the very least, a due regard duty would require an extension of the current six-month minimum tenancy term in the private rented sector to offer longer term security (for example. a minimum of two years).

Of course, factors beyond the control of Welsh minsters will impact on how households experience the right to adequate housing in Wales. For example, cuts in welfare benefits have prejudiced aspects of the right for many households in Wales, in particular affordability. My point remains, however, that the right to adequate housing would provide a foundation for housing policy, to underpin and inspire a more progressive approach to housing in Wales.

In addition to the examples above, other areas where the right might bite include: when decisions are taken about funding to ensure housing objectives are given proper weight alongside other priorities; and to inform guidance to local authorities to guarantee that the needs of socially disadvantaged and marginalised groups (for example, gypsy and traveller households) are properly met. In addition to this, incorporation would provide a strong platform, secured in domestic law, for advocates for housing reform to put the case for even greater progress toward realisation of the right to adequate housing in Wales. For all these reasons I support incorporation of a right to adequate housing in Welsh law.

Dr Simon Hoffman is associate professor human rights at Swansea University. For enquires about this article: [email protected]

[i]Preamble to the UDHR:

www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf

[ii]As well as the International Covenant on Civil and Political Rights. Both Covenants available via the UN human rights website:

www.ohchr.org/EN/HRBodies/Pages/HumanRightsBodies.aspx

[iii]For relevant guidance see UN Committee ESCR, General Comments No.3, No. 4 and No.9. Available via the UN Committee’s website:

www.ohchr.org/EN/HRBodies/CESCR/pages/cescrindex.aspx:

[iv]For the most recent report:

tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=E%2fC.12%2fGBR%2fCO%2f6&Lang=en

[v]Section 1. The Measure:

www.legislation.gov.uk/mwa/2011/2/contents

[vi]www.olderpeoplewales.com/en/equality_human_rights/declaration-of-the-rights-of-older-people.aspx

[vii]Social Services (Wales) Act 2013; and, Additional Learning Needs and Educational Tribunal (Wales) Act 2018.

[viii]For a fuller account of due regard: S.Hoffman, Due Regard: A Short Briefing.

www.swansea.ac.uk/law/wales-observatory/resources/

[ix]Social Services (Wales) Act 2013; and, Additional Learning Needs and Educational Tribunal (Wales) Act 2018.

[x]See, for example, Shelter Cymru, 2016, Reasonable Steps, p.11: sheltercymru.org.uk/wp-content/uploads/2015/02/Reasonable-Steps.pdf

[xi]Law Commission 2013, Renting Homes in Wales, Cm. 8578, footnote 7:

s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2015/03/lc337_renting_homes_in_wales_english-language-version.pdf

[xii]UN Committee, General Comment No.4, paragraph 7. Reference above.

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