Giulia Calini – University of Milan
Introduction
The first applicant is J. D., a woman who has been living with her disabled daughter in a 3 bedroom house since 1993. Her daughter’s condition is very serious and for this reason their home has been designed with all the necessary comforts to help her in daily life.
Following the 2012 governmental regulation the housing benefit of the applicant is reduced by 14% because her house has one more room than needed. Because of the reduction, the applicant’s Housing Benefit no longer meets the cost of her rent. The applicant asked for Discretionary Housing Payments (“DHP”) to meet the difference, which are temporary payments. Her last concession expired on 31 March 2017 and at the time of making her application she was awaiting a response to her most recent claim and had not been offered smaller accommodation adequate for her daughter too.
A., the second applicant, is a woman who lives with her son in a 3 bedroom house in the social rented sector. The applicant previously had an affair with X, an ex-convict who in 2002 went to A’s house to attacked and rape her. This is when her son was conceived. In 2012 X contacted A and she was referred by the police to the “Sanctuary Scheme” which aims to protect those at risk of domestic violence, thanks to it A and her son obtained a house with a panic room where they could excape in case of an attack by X.
After 2012 she experienced the same situation of J.D. In early 2015, her application for DHP was refused by the local authority and she received a letter threatening her with eviction. The refusal came from a misunderstanding and the Secretary of the State reversed the decision.
Domestic Proceedings
Analyzing J. D.’s situation, in 2013 the Divisional Court considered that the relevant Regulations could be considered discriminating, however it was difficult to identify a precise class of people who could be considered as affected by the measure by reason of their disability.
Then the Court of Appeal stated that the discrimination was justified because:
-identifying the class of people the applicant is part of so as to include it in the regulations would be complex;
-discretionary payments were suitable to deal with disability-related needs;
-the Secretary of State had the right to state that is better to assist certain groups of people with discretionary payments rather than Housing Benefits.
The second appplicant brought a claim for judicial review on the basis of gender discrimination which the High Court judged in January 2015 stating that the Regulations were prima facie discriminatory on grounds of gender but that the discrimination was justified.
The Court of Appeal, in January 2016, concluded that the discrimination against the second applicant was not justified and that it was unlawful. Dealing with Article 14 the Court held that: “It cannot seriously be disputed that A and those in a similar position, who are within the Sanctuary Schemes and in need of an adapted “safe” room, are few in number and capable of easy recognition”.
The Supreme Court gave its judgment in November 2016. Both the applicants’ claims were dismissed. Lord Toulson gave the lead judgment and examining the case of the first applicant, he concluded: “JD lives with [her] adult daughter, AD, who is severely disabled, in a specially constructed three-bedroom property. They have no objective need for that number of bedrooms. Because the property has been specially designed to meet [ADs] complex needs, there may be strong reasons for JD to receive state benefits to cover the full rent, but again it is not unreasonable for that to be considered under the DHP scheme”. In respect of the second applicant, he considered that whilst A had a strong case for staying where she needed to be, she had no need for a three bedroom property: “for as long as A. and others in a similar situation are in need of the protection of Sanctuary Scheme housing, they must of course receive it; but that does not require the court to hold that A has a valid claim against the Secretary of State for unlawful sex discrimination.”
Relevant domestic law and practice
The Social Security Contributions and Benefits Act 1992: section 130 of the Act provides Housing Benefits, financial payments available to claimants who have low incomes and meet certain eligibility criteria to help them with their rental costs whether they rent private or social housing.
Discretionary Housing Payments: according to it a payment may be made for such period as the authority considers appropriate in the particular circumstances of the case and the authority is required to give reasons for its decision.
The Human Rights Act 1998: according to section 6 it is unlawful for a public authority to act in a way which is incompatible with a Convention right.
The Equality Act 2010: Section 149 of the Act introduced the Public Sector Equality Duty providing that a public authority must:
(a)eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b)advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c)foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
In Section 149 disability and sex are described as protected characteristics.
EUROPEAN COURT OF HUMAN RIGHTS – THE LAW
Admissibility
The European Court of Human Rights considers both the applications admissible under Article 34 of the European Convention of Human Rights.
Merits
The first applicant complained that she had been discriminated on the basis of her daughter’s disability. She complained the violation of Article 14, prohibition of discrimination, in conjunction with Article 8, right to respect private anche family life, and Article 1 of Protocol 1, protection of property.
The second applicant complained that she had been discriminated on the basis of her gender. She complained the violation Article 14 in conjunction with Article 8.
The Government have not disputed that disability and gender are identifiable characteristics and that the applicants can claim to have been discriminated against on the basis of those characteristics.
The Court considers that the cases have to be examined under Article 14 in conjunction with Article 1 of Protocol No. 1.
The ECHR assessment
The prohibition described in Article 14 encompasses differences of treatment based on an identifiable characteristic, or “status” and the Court considered that a discriminatory treatment of a person on account of the disability of his or her child is a form of disability-based discrimination covered by Article 14 of the Convention.
On the basis of Article 14 a difference of treatment based on a prohibited ground is discriminatory if it “has no objective and reasonable justification”, meaning that there should be “legitimate aim” and a“reasonable relationship of proportionality between the means employed and the aim sought to be realised” to respect the Article.
The problem is to understand wheter there has been a discriminatory failure by the authorities of the United Kingdom to make a distinction in the applicants’ favor as their situations were different from those of other recipients of the Housing Benefit who were negatively affected by the policy. To this regard the domestic courts argued that the legislation aimed at reducing the public expenditure and the applicants also accepted this aim as legitimate in general terms, the problem left is to understand if the treatment given to the applicants was justified. In the case of the first applicant the Court recognizes that any move would be extremely disruptive and highly undesirable. The Court observes that J. D. has in fact been awarded DHP for several years following the changes to the Housing Benefit Regulation and that its provision gives a sufficient reason to satisfy the Court that the means employed to implement the measure had a reasonable relationship of proportionality to its legitimate aim. Accordingly, the difference in treatment identified in the case of the first applicant was justified.
Dealing with A., as the aim of the Regulation is to incentivize those with additional rooms to move to smaller houses while the aim of the Scheme is to help people at risk of domestic violence and to allow them to stay safe at their home, the Court underlines that there is a clear conflict between the two. Because of this friction, the Court considers the impact of treating the second applicant in the same way as all the other Housing Benefit recipient affected by the impugned measure disproportionate because not correspondent to the legitimate aim of the measure. So the Court states that the provision of DHP could not balance the relationship between the means employed and the aim sought to be realised where it formed part of the scheme aimed at incentivising residents to leave their houses.
Accordingly, the imposition of Regulation has not been justified and is discriminatory. In the conclusions, the Court also recalls that in the context of domestic violence States have a duty to protect the physical and psychological integrity of an individual from threats by other persons, including in situations where an individual’s right to the enjoyment of his or her life or house is at risk.
The Court concludes for the non violation of Article 14 in conjunction with Article 1 Protocol 1 for the first applicant, while there has been a violation for the second applicant. The United Kingdom has to pay A. 10.000 euros plus any tax that may be chargeable, in respect of non-pecuniary damage and also simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
Conclusions
The ECHR’s approach on the right to housing is surely interesting because it should be kept in mind that this right is not explicitly recognized in the Convention.
The interaction of different human rights is used to reach the protection of the right to housing. In common with other rights, the right to housing has its roots in the principle of human dignity and it is essential for the enjoyment of other social, economic and cultural rights such as rights to water, food, health, education and work and also for the effective enjoyment of civil and political rights such as rights to privacy and family life. The European Convention on Human Rights (ECHR) contains civil and political rights provisions which are indirectly interpreted in order to encompass the right to housing too.
The duties that the right to housing imposes on States are of different kind. First of all States have to avoid interferences in the right. Indeed to respect the right to peaceful enjoyment of possessions States are not allowed to interfere with private property without justification. Moreover there are obligations to secure the right against interference by third parties. The right to peaceful enjoyment of possessions also requires that individuals are not subject to interference with their property rights by other individuals. Lastly, states may have positive obligations to take appropriate legislative measures in order to achieve an appropriate protection, working on a progressive realization of the right to housing.
The Convention is a living instrument and the Court has a case by case approach which explains the reason why usually right to housing claims are decided in the context of art.8 that protects private and family life, art. 1 of Protocol 1 that is the right to property, art. 14 on the prohibition of discrimination, art. 1 of Protocol 12 that is about the general prohibition of discrimination, art. 3 prohibition of discrimiantion or art. 6 right to a fair trial.
According to the Court, “home” should be considered as the safe place where people can develop their private and family life under some minimum standards. At the same time the ECHR is willing to give the widest possible meaning to the notion of home, which complies with the conviction that the ECHR is a living instrument which must be interpreted in the light of cases’ circumstances.
In the present case the claim on the violation of the right to property as provided by art. 1 of Protocol 1 to the Convention is adequate as it has frequently been the basis of claims in cases of standard expropriation, evictions and certain aspects of leases such as rent levels. There is a branch of ECHR cases showing that entitlements to social assistance can amount to a property right and that housing rights’ duties may require States to provide material assistance to people or to take other steps which are necessary to ensure that people enjoy a certain level of material provision, that is that they have affordable housing of adequate quality. These obligations could include providing persons with cash benefits (with for example support for rental payments or mortgage payments) or other services such as free accommodation or free services related to housing, or intervening in the economy and society in other ways such as regulatory measures regarding housing standards. However States enjoy a certain standard of appreciation on the methods of implementation of housing rights and different characteristics of domestic systems play a decisive role. The level of development of the domestic economy may limit the ability of states to achieve housing rights objectives, even though the obligations continue to apply even during times of economic difficulties. The progressive realization requires the adoption of a national housing strategy which incorporates targets to be achieved and effective monitoring of the situation with respect to housing rights. The obligations imposed must be recognised in appropriate ways within the domestic legal order, remedies or means of redress must be available to individuals and means of ensuring governmental accountability must exist.
It is worthy mentioning one last facet of the right to housing: this right is also connected to the idea of social identity. This particular aspect is a very hot topic among the international community, indeed the right to housing has been included in the Sustainable Development goals as today still 150 million people around the world are homeless and there are still many groups of people who do not receive the minimum core housing rights protection across Europe, including Roma and gypsies, people with disabilities, refugees, immigrants, third-country nationals, asylum-seekers, migrants, national minorities and other discriminated groups, people in the lowest parts of the labor market and women who are victims of violence. These persons’ conditions put pressure on international entities and we will hopefully see how this problematic is going to be solved.