Private landlord ‘blacklisting’ of housing benefit tenants highlights UK human rights failures

Media reports suggest some private landlords are refusing to let properties to housing benefit claimants. Professor Aoife Nolan suggests this may put the UK in breach of international human rights law, if the government is failing to safeguard the right to adequate housing.

Does the eviction of housing benefit claimants violate international human rights law? Credit: YardsaleDan, CC BY-NC-SA 2.0

On Saturday, the Guardian reported that one of Britain’s best-known landlord couples has issued eviction notices to all of their tenants who are on welfare, and told letting agents that they will not accept any more applicants who are in receipt of housing benefit. The Wilsons have stated that the move is purely an economic decision. However, Mr Wilson was unable to resist making a comment about ‘single mothers on benefits’ who he reportedly noted ‘have been displaced to the bottom of the pile’ and for whom ‘sympathy … is disappearing’.

According to the Guardian, this development ‘has raised the prospect of claimants being clustered in the least desirable locations throughout Britain, and forced into the worst quality housing’. Shelter warns that ‘if this policy continues over the long term, we will see blackspots in the country where people on housing benefit simply cannot find anywhere reasonable’.

This situation did not come out of nowhere. In a powerful piece published in the current edition of the London Review of Books, James Meek demonstrates that the housing shortage that has been building up for the past thirty years is reaching the point of crisis; increased housing demand caused by the failure of councils (and private developers) to build has resulted in a marked increase in rents in the private sector. According to Meek: ‘as council houses continued to be sold [as part of the Right to Buy scheme], the proportion of the poor and disadvantaged claiming housing benefit in expensive privately rented property rose’.

And decisions by landlords such as the Wilsons mean that prospects look every-dimmer for housing benefit recipients renting, or seeking to rent, in the private rented sector.

There are a number of ways to look at the Wilsons’ effective ‘blacklisting’ of housing benefit recipients. From one perspective, it is simply a rather despicable and anti-poor decision taken by a particular business that was happy to take housing benefit tenants in the past but, as a result of the current shortage of good quality housing stock, can command higher rents at a time when housing benefit levels are falling. Contemptible? Yes. Anti-benefit-claimants? Undoubtedly. Unlawful? One imagines that the Wilson’s lawyers are likely to have assured them that it is not.

Now it may be that the egregious nature of the Wilsons’ attack on their tenants’ enjoyment of their homes will force domestic courts to look to the UK Human Rights Act 1998 for tenant-protection despite the lack of direct state involvement. This possibility apart, all may appear to be plain sailing for the Wilsons. But the same is certainly not true for the UK government. This is because of another very important perspective that needs to be taken into account in this instance and which is the subject of this comment: that of international human rights law.

1976 saw the UK ratify the International Covenant on Economic, Social and Cultural Rights. In doing so, the UK volunteered to be bound by the right to adequate housing set out in Article 11(1) of that treaty. Reflecting the binding nature of its duties under the Covenant, the UK submitted reports to the Committee on Economic, Social and Cultural Rights – the expert Committee that oversees implementation of the treaty – in 1993, 1996, 2001 and 2008. These reports have all included information on the steps taken by the UK to give effect to the right to adequate housing.

Unfortunately, these steps have not always been deemed sufficient in terms of international human rights law.

In its review of the UK’s most recent report, the Committee expressed concern about ‘the chronic shortage of housing, in particular social housing, for the most disadvantaged and marginalized individuals and groups’. In September of last year, after a visit to the UK, the UN Special Rapporteur on the Right to Adequate Housing, Raquel Rolnik, stated:

It is not clear that every effort has been made to protect the most vulnerable from the impacts of retrogression [I.e., backward steps in terms of enjoyment of the right to adequate housing] … Housing deprivation is worsening in the United Kingdom. Increasingly, people appear to be facing difficulties in accessing adequate, affordable, well located and secure housing.

But what does the ‘right to adequate housing’ mean? What is ‘adequate’ in this context? The Committee has stated that the right to ‘adequate’ housing requires that housing must be affordable, accessible, habitable and culturally appropriate. It must contain certain facilities essential for health, security, comfort and nutrition (e.g., energy for cooking, heating and lighting, sanitation and washing facilities, means of food storage and refuse disposal). To qualify as ‘adequate’, housing must also be in a location which allows access to employment options, health-care services, schools, child-care centres and other social facilities. Finally, regardless of whether a person is a home-owner, a social housing tenant or a tenant in the private sector, she must possess a degree of legal security of tenure which guarantees legal protection against forced eviction, harassment and other threats.

All of these elements of the right to adequate housing appear to be even more at risk for housing benefit tenants as a result of ‘the Wilson scenario’.

So what does human rights law add to our understanding of the situation brought about by the Wilsons and (we can be sure) many like them? The state is undoubtedly entitled to rely on or use the private sector as part of the measures it takes to satisfy its obligations in respect of the right to adequate housing – the Committee has expressly stated this. But using the private sector does not mean that the government can wash its hands of its obligations to right-holders. Where the state relies on the private rental sector to satisfy housing rights needs it is still obliged to ensure that the requirements of adequate housing are met. If the actions (or inaction) of private sector actors mean that people cannot access affordable, habitable, accessible and suitably located housing, and the government does not act to prevent or remedy this, the UK will be in violation of its international human rights obligations.

Focusing on the situation of Wilson’s existing housing benefit tenants, one is forced to ask: has the requirement to provide legal security of tenure really been satisfied where a private landlord can evict tenants solely on the basis of their status as benefit-claimants and without any regard to whether or not individual tenants have defaulted? The Committee seems very likely to conclude that the answer is no. The fact that the state has rendered such a situation possible means that it has failed to perform a vital regulatory function envisaged under international human rights law.

So what can be done? There is no international human rights court that can force the UK to comply with its human rights obligations. Indeed, the UK has not signed up to the international complaints mechanism that would mean that those who cannot access adequate housing due to their benefit claimant-status could approach the Committee for a finding that the state has violated their rights under the Covenant.

But there are other crucial ways by which the government can be pressurised to act to prevent future Wilson-esque actions by landlords.

This June, the UK is due to submit its periodic report on the progress it has made on giving effect to the rights under the Covenant – including the right to adequate housing. The Ministry of Justice has asked for submissions on priority areas that its report should cover. Those who disagree with the current legal framework that allows private landlords to ‘blacklist’ housing benefit recipients can contact the Ministry and highlight that the existing situation is a violation of the right to adequate housing that should be explained in the report.

There is also the possibility of sending information directly to the Committee about the situation through the submission of an alternative report to the Committee or working with actors such the Equality and Human Rights Commission and the Just Fair Consortium who will be producing such so-called ‘shadow reports’.

The power of the ‘name and shame’ impact of international human rights law should not be underestimated. When running for election to the UN Human Rights Council, the UK pledged that it would ‘work for the protection of the most vulnerable in our societies’. The UK was elected last November. It is now time to ensure that that pledge is made real.

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Note: This post was originally published on The Huffington Post. It represents the views of the author and does not give the position of Democratic Audit or the LSE. Please read our comments policy before commenting. Shortlink for this post: buff.ly/1gDiYUM

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Aoife Nolan is Professor of International Human Rights Law, School of Law, Nottingham University. She has published extensively in the areas of human rights, particularly in relation to economic and social rights and children’s rights, as well as on constitutional law. Aoife has worked with and acted as an advisor to a wide range of international and national organisations and bodies working on human rights issues, including the UN Special Rapporteur on Extreme Poverty and Human Rights and the UN Special Rapporteur on the Right to Safe Drinking Water and Sanitation.