Review of recent UN report on the global crisis in access to adequate housing as “a global crisis in access to justice for the right to housing” and how this reflects on the current situation in the United Kingdom.
The right to adequate and affordable housing is a basic and fundamental human right. It is generally understood as it is defined under international human rights law, as “the right to live somewhere in security, peace and dignity”. Nonetheless, the housing crisis is global, with an estimated 1.8 billion people lacking adequate housing, and “twenty-five per cent of the world’s urban population live in informal settlements”.
In a new report presented to the United Nations in Geneva in early March, the UN Special Rapporteur on the right to adequate housing, Leilani Farha, “suggests that the global housing crisis is rooted in a crisis in access to justice because without access to justice, housing is not properly recognised, understood or addressed as a human right.” She describes how states and other stakeholders can use human rights law to ensure that individuals and communities have access to remedies to this issue. She addresses a key question frequently put to her: Where do we go to claim our right to housing? After all, “Rights must have remedies, and Governments must be held accountable to rights holders”.
Global crisis in access to justice for the right to housing
“Homelessness and forced evictions are on the rise in virtually every country”: this is visible through the growing numbers of rough sleepers and informal homeless encampments. According to Farha, “When the capacity exists to eliminate widespread homelessness and inadequate housing, the only explanation for their persistence at current levels is that States and other actors have failed to recognize housing as a human right.”
Access to justice for the right to housing is not simply about legal and constitutional protections but “whether courts and Governments are willing to recognize that the right to housing is central to the core human rights values that courts must safeguard and to which Governments must be held accountable”. Farha identifies ten principles to guide states and their judicial systems on how to realise international human rights law on the right to housing within domestic frameworks.
These include providing the same level of protection in domestic legal systems as that afforded under international law, so that access to justice is provided “not only for a right to physical shelter, but to a safe and secure home in which to live in security, peace and dignity. Effective remedies must be available to ensure legal security of tenure, affordability, habitability, availability of services, accessibility, location and cultural adequacy.”
Courts must not just hear negatives rights claims – such as the return of seized property from a homeless encampment or allow the encampment residents to remain there – but also positive rights, such as demanding the state offers the residents permanent viable housing solutions. In addition, the state should allocate resources for positive measures through other means, such as rental assistance and “housing first” programmes. As Farha states, “Ensuring only a right to live in a cardboard box or under plastic in the most affluent countries in the world does not remotely satisfy the standard of reasonable measures required under international human rights law”.
Farha addresses the standards of reasonableness and access to justice in light of international law and well-known cases, such as the South African Grootboom (2000) case, where the court called for relief to be provided “to those in desperate need”. The rights of groups facing specific problems, such as indigenous peoples, migrants, women, the disabled, children and ethnic minorities must also be taken into consideration.
The right to housing need to be brought into the mainstream as ultimately “States cannot hold themselves up as leaders in human rights while leaving increasing numbers of residents to live and die on their streets, with no means to hold their Governments accountable and with no access to effective remedies.”
Meanwhile in Britain…
According to housing charity Shelter, 320,000 people in the United Kingdom are registered as homeless, “This means one in every 200 people in Britain are homeless and sleeping on the streets or stuck in temporary accommodation, including hostels and B&Bs.” In London, this rate is one in every 52 people.
Eviction The main cause of homelessness in England and Wales since 2010 is the loss of rented accommodation through eviction or increases in rent. The number of households currently in private rented accommodation is 4.7 million, or 20% of the total. Private renters are increasingly at risk of being evicted under a section 21 (of the Housing Act 1988) notice by landlords without reason or right of appeal in spite of changes to the law since October 2018. Recent figures suggest that 216 households evicted every week in England under section 21 “are becoming homeless”. A 2018 study by Citizens Advice found that “50% of clients who made a formal complaint about their housing were evicted”. Although councils have the power to act, recent data obtained by campaign group Generation Rent suggests that only 5% are assisted.
According to Farha, “The procedural and practical barriers facing potential rights claimants seeking access to courts and tribunals must be addressed, and so too must substantive barriers stemming from inadequate protection of the right to housing afforded by existing laws and by the prevailing interpretation and application of those laws within courts”. Calls to repeal section 21 remain unaddressed by those who have the power to do so.
Although limited legal aid is available to some householders it is often only available at later stages of a case (e.g. after an eviction) and many, particularly those in greatest need, live in “advice deserts” due to the diminishing pool of legal aid providers.
Rough sleepers are the visible face of the housing crisis. Administrative orders, such as Public Spaces Protection Orders (PSPO), result in rough sleepers being fined or imprisoned. Farha stresses that the law must not be used to criminalise the “homeless and inadequately housed”. Indeed, rough sleepers are at least 17 times more likely to be subject to anti-social behaviour from the general public and subject to unwarranted violence and attacks. In Wales, the response from a charity and a social enterprise is to offer rough sleepers stab-proof coats, each of which cost £700 to make. Local authorities, however, have offered no positive alternatives to help rough sleepers.
Inadequate housing Many more people live lives of quiet desperation in inadequate accommodation. These include overcrowding, sometimes in illegal HMO (house in multiple occupation) where landlords illegally let and sublet to sometimes up to 40 tenants in a property intended for 5-6 people in squalid conditions. While such landlords are now subject to fines, there is little by way of assistance for the people left homeless. In addition, loopholes in the law allow such landlords to continue operating and in some cases, accumulate social rents from local councils, in spite of fines and bans.
On the other hand, a new law in force since March 2019, the Homes (Fitness for Human Habitation) Act 2018, could offer relief to tenants in inadequate housing. The High Court also recently found the government’s 2014 right to rent scheme, under the “hostile environment” whereby landlords have to ask for assurance of immigration status, disproportionately affecting tenants who are foreign nationals or have names that sound foreign, to be discriminatory and consequently unlawful.
Impact
The impact of the housing crisis is not merely legal or financial, it has implications for the physical and psychological wellbeing of people and community cohesion. Along with the sale of social housing to make way for regeneration and exclusive development efforts, the relocation of people in temporary housing, particularly by London councils, long distances from their communities has an impact on both the old and new communities, creating new social problems in some areas.
The housing crisis is not simply one of the commodification of housing as an asset with government approval, it is also an excellent form of social control. People are afraid to complain and are overwhelmed by fears of being evicted and/or made homeless.
Following widespread riots in the summer of 2011, the families of rioters living in social housing were evicted. The effect of this collective punishment has been recognised as a measure that paved the way for the gentrification and social cleansing of inner city London, supported by the government, in favour of property developers. The fact that many of the families affected were from ethnic minorities also presents a discriminatory aspect to this form of punishment, which then served as a warning to others.
NO right to housing in the UK
Although the United Kingdom is bound by Article 11 of the International Covenant on Economic, Social and Cultural Rights (ICECSR)* and other international treaties and agreements that include the right to adequate housing and the progressive realisation thereof, this right has not been incorporated into UK law. This means that “individuals who feel their right to housing may have been violated won’t be able to take legal action against Government for breach of the right to housing”. UN treaty bodies of the international treaties the UK is a signatory to have in recent year expressed their concern over the country’s failure to provide and address the lack of adequate housing.
In the fifth largest economy in the world, the failure to address the right to housing can have other effects. As Farha states, “As long as States deny access to justice for the right to housing, they perpetuate a hierarchy of human rights, exposing the discriminatory position that some rights (and thus some rights holders) matter more than others”. Some, such as failed asylum seekers, those with no recourse to public funds or subject to benefits sanctions find themselves outside of the system altogether.
Failure to acknowledge the right to adequate housing leads to the failure to acknowledge and the erosion of other social and economic rights, such as the rights of women, children, ethnic minorities, migrants, the disabled and traveller communities and the right to education, healthcare and recreation. The right to housing cannot be viewed independently of other rights.
Grenfell
The failure to recognise the right to adequate housing in the United Kingdom was most patently demonstrated in the June 2017 Grenfell Tower disaster in North Kensington when cheap, unsuitable cladding on a council estate caused a fire to destroy the 24-storey building and claim the lives of over 70 residents. In previous years, residents had complained to the private management company assigned by the council about the inadequate condition of the building. Their concerns were ignored.
Almost two years on, not all buildings with similar cladding have had it replaced to prevent another such disaster in future, and many feel that a ban imposed in 2018 does not go far enough to protect public safety. There have been no prosecutions and survivors have yet to be rehoused.
In response to the government’s inaction after one year, Farha wrote that only a human rights approach “lays out universal standards of what constitutes “adequate” housing” and “what’s required after a disaster like Grenfell”.
In her recent report, Farha notes the role that national human rights institutions have to play in ensuring and protecting the right to adequate housing. In its most recent publication, the Equality and Human Rights Commission (ECHR) does just that, looking at what the right to adequate and safe housing means in a post-Grenfell Britain. The report finds that “The current legal framework in England does not guarantee the right to adequate and safe housing and does not conform with international standards.”
Seven key elements of the right to adequate housing set out by the UN Committee on Economic, Social and Cultural Rights are used to demonstrate the failings and breaches of the British government with respect to the victims and survivors of the Grenfell disaster. This includes the failure to provide shelter and basic facilities in the aftermath of the fire, with some survivors sleeping rough for days afterwards, a lack of access to public services, the failure to provide suitable long-term accommodation, and discrimination against those with protected characteristics under the Equality Act 2010 (religion, disability, language provision), among others.
The report found violation of various human rights, including the right to life, freedom from torture and cruel, inhuman or degrading treatment, equality and non-discrimination and the rights of children.
Conclusion
The British government’s response to the housing crisis has been poor. As demonstrated by Grenfell, the response to the housing crisis has not come from the authorities but from ordinary people. Farha states that achieving access to justice for the right to housing “is built from the ground up. It begins with individuals, groups and communities recognizing their circumstances as a violation of the right to housing and articulating a human rights claim.” Community groups know this and are coming together to achieve just that but the size of the task is colossal and they lack the resources and capacities of government bodies.
The state’s role in undermining such efforts should not be forgotten and must be justiciable. The sell-off of social housing cheaply by local councils has yielded millions of pounds in profits for the new private owners. It has also been argued that the poor state of council-run estates and social housing is a deliberate ploy to make such areas conducive to private development takeovers.
The problem and the solution are patently clear; the latter has been outlined skilfully by Leilani Farha in her report. A lack of resources is hardly the case for the UK. What is missing is a lack of political will and action to reverse and address a decade of mismanagement and wilful negligence as well as the government’s refusal to be held responsible for its role in this crisis, even though the Grenfell disaster offers an ideal starting point to do this.
* Article 11(1): The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.
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