Human Rights Case Summaries

Commissioner for Social Housing in the ACT & Massey (Residential Tenancies) [2013] ACAT 41 (4 June 2013)

The ACT Civil and Administrative Tribunal (ACAT) has held that, when determining an application for termination of a public housing tenancy, ACAT’s jurisdiction to consider the human rights compliance of the public landlord is limited to ACAT’s exercise of discretion under the Residential Tenancies Act 1997 (ACT) (RT Act).

Motswagae and Others v Rustenburg Local Municipality and Another [2013] ZACC 1

The Constitutional Court of South Africa held that excavation work in close proximity to the applicants’ homes was tantamount to eviction, and that section 26(3) of the Constitution protects the undisturbed occupation of home unless there is a court order.

Schubart Park Residents’ Association and Others v City of Tshwane Metropolitan Municipality and Another [2012] ZACC 26 (9 October 2012)

The protection against arbitrary eviction under section 26(3) of the South African Constitution provides that a person cannot be evicted from their home without an order of court made after considering all the relevant circumstances. In a unanimous judgment, the Constitutional Court held that the High Court’s order dismissing an application by residents for immediate re-occupation of their homes after their emergency removal was not a justified order for the purposes of section 26(3). The Constitutional Court set aside the High Court’s orders and ordered that the residents were entitled to occupation of their homes as soon as reasonably possible.

Buckland v United Kingdom [2012] ECHR 1710 (18 September 2012)

The European Court of Human Rights has held that a UK Court of Appeal decision to uphold a possession order against an applicant constituted an unjustified breach of the applicant’s right to respect for her home in violation of article 8 of the European Convention on Human Rights which concerns the right to respect for private and family life. The European Court awarded damages and costs to the applicant, ordering the UK Government to reimburse the applicant if a costs order made against her in the UK Court of Appeal is enforced.

DS v Aboriginal Housing Victoria (Unreported, Victorian Civil and Administrative Tribunal, Residential Tenancies List, Member Warren, 3 July 2012) 

In a recent decision, the Victorian Civil and Administrative Tribunal considered the Charter rights of an applicant for the creation of a tenancy agreement. The Tribunal found that the application engaged the applicant’s right under sections 13 and 17 of the Victorian Charter, and ultimately ordered the respondent landlord (a social housing provider) to enter a tenancy agreement with the applicant.

City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another (Lawyers for Human Rights as Amicus Curiae) Case No: CCT 37/11 [2011] ZACC 33 (1 December 2011)

The South African Constitutional Court has held that the City of Johannesburg had a constitutional obligation to provide emergency accommodation to vulnerable persons evicted by a private landlord.

TG, R (on the application of) v London Borough of Lambeth [2011] EWCA Civ 526 (6 May 2011) 

The UK Court of Appeal has considered whether a failure to provide housing and other supports to a vulnerable young person breaches their positive obligation to respect the right to a private life. The Court has signposted that ordinarily only failures that amount to ‘inhuman and degrading treatment’ will breach the UK’s positive obligation.

Hounslow London Borough Council v Powell; Leeds City Council v Hall; Birmingham City Council v Frisby [2011] UKSC 8 (23 February 2011)

In Manchester City Council v Pinnock [2010] UKSC 45 (Pinnock) the UK Supreme Court held that a person at risk of eviction from their home by a local authority should be able to question the proportionality of eviction (although there is no right under domestic law to remain in the property); and an independent tribunal should be able to assess proportionality with reference to article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Convention).

Director of Housing v KJ (Residential Tenancies) [2010] VCAT 2026 (16 December 2010)

A recent VCAT decision found that the Director of Housing (‘Director’) acted in accordance with its duties as a public authority pursuant to s 38(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) in serving the respondent with a Notice to Vacate (‘NTV’) and in making an application for possession.  Member Dea assessed the scope of the rights to privacy and to the protection of families and children and she concluded that neither of these rights had been engaged.  She held that even if such rights had been engaged, the Director had given proper consideration to, and had acted compatibly with, them in seeking to evict the respondent.  The application for possession was upheld.

Director of Housing v TK [2010] VCAT 1839 (16 November 2010)

A recent VCAT decision has shown that public housing authorities are developing a more thoughtful and engaged model of decision making that gives proper consideration to the human rights of vulnerable tenants.

Manchester City Council v Pinnock [2010] UKSC 45 (3 November 2010)

In this decision the UK Supreme Court was required to decide whether art 8 of the European Convention on Human Rights requires a court to consider the reasonableness and proportionality of applications for possession of premises under the Housing Act 1996.

Canberra Fathers and Children Services Inc v Michael Watson [2010] ACAT 74 (29 October 2010)

The ACT Civil and Administrative Tribunal has found that an eviction from social housing that would result in homelessness is a breach of the right to be free from unlawful or arbitrary interference with the home.

Birmingham City Council v Clue [2010] EWCA Civ 460 (29 April 2010)

In this case, the England and Wales Court of Appeal held that the Birmingham City Council’s refusal to provide financial assistance and accommodation to a family while their immigration application was pending resulted in a breach of the family’s right to respect for family and private life under art 8 of the European Convention of Human Rights.

Victoria (City) v Adams, 2009 BCCA 563 (9 December 2009)

The British Columbia Court of Appeal has held that a city bylaw which prohibited homeless people from erecting any form of temporary shelter at night in a public park, in circumstances where the number of homeless people exceeded the number of shelter beds available, is a violation of the right to life, liberty and security of the person.

London & Quadrant Housing Trust v Weaver, R (On the application of) [2009] EWCA Civ 587 (18 June 2009)

A recent decision of the Court of Appeal has revisited the vexed issue of the definition of ‘public authority’.  The decision warrants attention for a number of reasons.  First, the decision acts as clear authority that a social landlord is a public authority, and that the act of terminating the tenancy of a tenant is not a private act and is therefore susceptible to judicial review under the Human Rights Act 1998 (UK) (‘HRA’).  Second, the decision highlights the need for clear legislative guidance on what constitutes a ‘public authority’.  This is discussed further below.

Nolan v MBF Investments Pty Ltd [2009] VSC 244 (18 June 2009)

The Supreme Court of Victoria recently confirmed that fundamental human rights, both in international law and the Victorian Charter, are relevant interests that must be considered when a mortgagee sells a property to satisfy a debt.  This is especially relevant where a debt is secured over a family home.