The Right To Adequate Housing In Wales - Tai Pawb

The right toadequatehousing inWales:Feasibility ReportAuthored by: Dr Simon Hoffman (Swansea University) for Tai Pawb,the Chartered Institute of Housing Cymru and Shelter CymruPublished June 2019

Tai Pawb is a company limited by guarantee (5282554) and a registered charity (1110078).CIH is a registered charity (244067).Shelter Cymru is a registered charity (515902).2

ContentsThe Right to Adequate Housing: An introduction. 1The case for incorporation in Wales. 3Abbreviations .5How to use this report. 6Part A: Framework Issues - General.7International human rights. 8Incorporation. 8Direct incorporation. 8Indirect incorporation. 9Sectoral incorporation. 9Why incorporation matters: Priority and accountability .10Addressing the implementation gap.10Accountability in the UK.10Accountability on a spectrum. 11Complaints . 11Strengthening the role of National Human RightsInstitutions . 11Parliamentary accountability: The National Assemblyfor Wales . 12Enforcement. 12Enforcement and direct incorporation. 13Limitations on judicial enforcement:A self-imposed restraint. 13Enforcement and indirect incorporation. 14The right to adequate housing in Wales: Feasibility Report3

Part B: Framework Issues – The Right to Adequate Housing. 15The right to adequate housing. 16General obligations of the right to adequate housing. 16Respect, protect and fulfil. 16Progressive realisation. 16Non-discrimination .17Minimum core.17Other obligations of the right to adequate housing.17Legal security of tenure. 18Availability of services, materials, facilitiesand infrastructure. 18Affordability. 18Habitability. 18Accessibility. 18Location. 18Cultural adequacy. 19Part C: Framework Issues – Wales.20The right to adequate housing: UK context. 21The right to adequate housing: Wales context. 21Incorporation of human rights in Wales. 22Incorporation of the right to adequate housing in Wales. 23Competence and models of incorporation. 24Human rights competence. 24The Welsh approach to incorporation. 24What to incorporate: Wholesale incorporationof social rights? .25What to incorporate: The right to adequate housing? .25Human rights incorporation: Model A,indirect incorporation.254

Human rights: Model B, direct incorporation . 26A dual approach. 26Accountability on a spectrum.27Judicial review: Model A.27Judicial review: Model B. 28The right to adequate housing and currentWelsh legislation. 28The Human Rights Act 1998. 28The Rights of Children and Young Persons (Wales)Measure 2011. 28The Social Services and Well-being (Wales) Act 2014. 29The Well-being of Future Generations(Wales) Act 2015. 29The socio-economic duty under section 1 of theEquality Act 2010. 29Part D: Some Insights into the Impact Of Incorporation. 31Incorporation and government action . 32Incorporation and enforcement. 33Finland: A focus on the right to adequate housing.35Ireland: A rights-based approach to housingregeneration.35The impact of incorporation of the CRC in Wales. 36Part E: Impact Analysis.37Case study: Homelessness and intentionality. 38Case study: Security of tenure. 39Case study: Security of tenure and evictioninto homelessness.40Case study: Accessible housing for disabled people. 41Case study: Young people. 42Case study: Tenant voice.44The right to adequate housing in Wales: Feasibility Report5

The Right to AdequateHousing – an introduction‘If there had been a right to adequatehousing in the United Kingdom,the Government and the local authoritywould have had a legal duty to considerseriously and in a timely manner, thesafety concerns raised by the GrenfellTower residents, before the conditionsbecame life-threatening.’ Geraldine VanBueren QC, Professor of InternationalHuman Rights Law in Queen Mary,University of London and Visiting Fellow,Kellogg College, Oxford.As we mark the second anniversary ofthis harrowing tragedy, the image of theburnt out shell, towering high over oneof the richest boroughs, of one of therichest cities in the world, must continueto act as a catalyst; a call to action for usall to fundamentally re-think the value weplace on social and all housing, and therole that simple bricks and mortar mustplay in acting as a starting point for anyform of community, economic and socialregeneration.“The law failed to protect the residentsof Grenfell Tower. Even if legal aid hadbeen available, the fact is that there wasno legislation that would have given thecourt the power to intervene and stopthe process that ultimately led to suchdreadful loss of life. Only an enforceableright to adequate housing would haveguaranteed the residents the ability totake their concerns to court, have theirquestions answered and the dangerouscladding removed before it was toolate. It is time that the right to housing,long recognised in international law,is protected in law” – Jamie Burton,Doughty Street Chambers lawyer whoacted for various bereaved, survivors andresidents in Phase 1 of the Grenfell TowerInquiry.Grenfell has come to symbolisesomething much more deep-rooted thanquestions about fire safety and buildingregulations.In the early hours of 14 June, 2017, a fireengulfed the 24-storey Grenfell Towerblock of flats in North Kensington, WestLondon.It claimed the livesof 72 people.For every high-rise tenant living in fearthat this could happen to them, thereare many more who simply cannot find ahome in their community. There are thosewho are battling to keep a roof over theirheads or are sleeping rough on our streetsevery night.Grenfell has come to represent how wehave failed those in most need in oursociety – those in need of that most basicof human requirements: that of accessto shelter, a place where they feel safe, aplace to call home.This terrible tragedy, if nothing else,should commit us to doing everything wecan to ensure it never happens again. Abig part of that process should be, in ourview, embedding into Welsh legislation,the Right to Adequate Housing as outlinedin ICESCR1 (International Covenant onEconomic, Social and Cultural Rights).1 103%2009-57%20PM/Ch IV 03.pdf1

The Housing Crisis in WalesOver21,00060,589households facedor experiencedhomelessness in 2018households on socialhousing waiting list(Shelter Cymru - March 2018)(Statistics Wales)1 out of 22local authorities has accessiblehousing building target(Statistics Wales)347people sleeping roughon our streets2,139households in temporaryaccommodation - ofwhich 837 are familieswith children.(Statistics Wales - March 2019)(Statistics Wales - Feb 2019)1/3Only one third of ushappy living near socialhousing42%of private tenants donot have a fixed termtenancy in Wales(Shelter Cymru - Feb 2018)(Tyfu Tai Public PerceptionsSurvey April 2018)The right to adequate housing in Wales: Feasibility Report2

The case forincorporation in WalesThe case for fully incorporating the Rightto Adequate Housing into Welsh lawshould not be informed by the tragedy ofGrenfell alone – although that tragedy isreason enough for consideration of what arights-based approach could deliver.Wales, as the rest of the UK, is in themidst of one of the deepest and farreaching housing crises that we have seenin modern times. A crisis which is having aprofound impact on the very fabric of oursociety.A report by homelessness charity Crisis in2017, revealed that core homelessness inWales – defined as rough sleepers, sofasurfers, people squatting and living inhostels and unsuitable accommodation –was at just over 5,000. Welsh Governmentreports that in 2018 over 10,000households faced homelessness withover 11,000 actually experiencing it.We have seen news report after newsreport highlighting the numbers sleepingrough on our streets; the number offamilies with young children being forcedto live in temporary accommodationsuch as B&B for long periods becausethere aren’t enough houses at social rentavailable; and how the crisis is adverselyaffecting the young and failing a wholegeneration.This is the basis for the fundamentalconversation that we need to have as anation. Not only as a result of the tragic3loss of human life at Grenfell, but alsobecause it cannot be acceptable in aforward-thinking and progressive Walesthat people don’t have anywhere to live.As a society, therefore, how much of apriority do we want to place on housingin order to ensure universal access tothat most basic of human rights - a safe,secure and affordable place that we cancall home.We believe that at the core of any solutionto the housing crisis must be nationwidecommitment to the fundamental principlethat everyone of us should have a humanright, underpinned by law, to accessadequate and sustainable housing.This paper sets out in detail the legal andlegislative route to full incorporation of theRight to Adequate Housing in Wales (seeParts A to B)It provides case studies (see Part E)which we believe evidence the impactthat incorporation could have, includinghow a rights-based approach could haveafforded the residents of Grenfell moreprotection.It is by no means an exhaustive documentbut we are confident that it can be acatalyst in igniting a serious discussionabout getting the basics right in terms ofreaching our shared goal – providing asustainable housing option for everyone inWales.

The political consensus on the right tohousing already exists in Wales. Almostevery political group represented inthe Senedd, has said that they believehousing is a right – now is the time to turnthat consensus into law.We would like to take this opportunityto thank Dr Simon Hoffman, AssociateProfessor at Swansea University, forauthoring this report and ProfessorGeraldine Van Bueren QC for inspiring usto start on this journey in 2018.Dr Hoffman has an impressive academicbackground rooted in rights-basedapproaches to the delivery of publicservices. Since 2012, he has been aco-coordinator of the Observatory onHuman Rights of Children and is currentlya member of the Welsh Government’sChildren’s Rights Advisory Group and wasinvolved in the development of the Rightsof Children and Young Persons (Wales)Measure 2011 which imposed a duty onWelsh Ministers to have due regard toAlicja ZalesinskaDirectorTai Pawbthe rights and obligations in the UnitedNations Convention on the Rights of theChild (CRC). He also chairs the Welsh CivilSociety Human Rights Stakeholder Group.We believe that this report makes for acompelling case for the incorporationof the Right to Adequate Housing as setout in ICESCR (International Covenant onEconomic, Social and Cultural Rights) intoWelsh law, whilst also clearly setting outthe route map for how we get there.We believe that the dual approachoption set out in Section C is thebest way forward but it’s nowover to you, our representativesin Wales’ Parliament. Only youcan deliver on that promise toensure that all of us in Wales,no matter what our backgroundor our personal and financialcircumstance, have a legal rightto a place to call home.John PuzeyDirectorShelter CymruMatt DicksDirectorCIH CymruThe right to adequate housing in Wales: Feasibility Report4