Shaping Housing and Community Agendas

CIH S response to the Equality and Human Rights Commission (EHRC) Statutory Code of Practice for services, public functions and March 2010 This consultation response is one of a series published by CIH. Further consultation responses to key housing developments can be downloaded from: http://www.cih.org/policy/papers.htm Shaping Housing and Community Agendas Page 1 of 11

1. Introduction 1.0 The Chartered Institute of Housing (CIH) welcomes the opportunity to comment on the draft for consultation of the statutory code of practice for services, public functions and associations produced by the Equality and Human Rights Commission (EHRC) based on the Equality Bill as printed on 3 rd December 2009. 1.1 CIH supports the aims and objectives of the Equality Bill which will expand and bring together the different strands of diversity within one piece of legislation. 1.2 CIH supports the main intentions of the Equality Bill to: Increase transparency in the workplace with a requirement for public bodies to monitor progress across the different strands of diversity Make further regulations outlawing unjustifiable age discrimination by those providing goods, facilities and services Take steps to strengthen enforcement, for example, by allowing tribunals to make wider recommendations in discrimination cases Enable employers to take positive action in relation to the recruitment of under represented groups when selecting between equally qualified candidates Introduce a new Equality Duty which will extend existing duties relating to race, gender and disability, so that listed public bodies (and private bodies delivering a public function) will also have to consider, age, sexual orientation, religion or belief, pregnancy and maternity, and gender reassignment when designing and delivering public services Introduce a new duty on Government departments, local authorities and NHS bodies to consider what action they can take to reduce so called socio-economic' inequalities Enable public bodies to use the procurement process to promote equality as a means of extending equality objectives in the private sector. 2. The Chartered Institute of Housing and equality and diversity 2.0 CIH is the professional body for people involved in housing and communities. CIH has a diverse and growing membership of over 22,000 people both in the public and private sectors. CIH exists to maximise the contribution that housing professionals make to the wellbeing of communities. Page 2 of 11

2.1 As a professional body CIH is committed to playing a leadership role in creating a more diverse housing workforce. 56 per cent of CIH members are women and 14 per cent of UK members have black, and minority ethnic backgrounds. CIH is now developing new programmes of work in the areas of disability, age, sexual orientation and religion or belief. Some current highlights include: Developing a Positive Action for Disability trainee scheme for England and Wales to develop skills and drive forward employment opportunities for disabled people in housing and communities 1 Continuing to improve as a Stonewall Diversity Champion with a commitment to promote lesbian, gay and bisexual equality in the workplace across the housing and communities sector 2 Establishing an on-line community of practice of lesbian, gay and bisexual people working in housing in communities with in excess of 100 members drawn from all areas of the housing sector CIH equality and diversity publications and guides: A Guide to Engaging Muslim Communities, Community Cohesion and Housing, Black and Minority Ethnic Housing Strategies, Housing, Race and Community Cohesion, A Guide to the Human Rights Act for Housing Professionals, Providing Gypsy and Traveller Sites: Contentious Spaces; and Equality, Diversity and Good Relations in Housing Running with (Hact) the Opening Doors project to improve housing association services for refugees and migrants which was followed in 2009 by Count Me In the Refugee Community Housing and Employment Project 3 3. The importance of housing for equality, diversity and community cohesion 3.1 The affordable housing sector provides homes to 5.3 million households. It provides accommodation to some of the most vulnerable people in society: 70 per cent of social tenants have incomes within the poorest two fifths; social tenants have high rates of disability, are more likely to be lone parents, single people or aged over 60. In addition a quarter of all black and minority ethnic householders are social tenants. 4 3.2 Affordable housing providers play a key role to play in promoting community cohesion: many social landlords actively promote understanding and good relations between people who have different 1 www.cih.org/careers/positiveaction 2 www.cih.org/news/view.php?id=994 3 www.cih.org/policy/openingdoors 4 Hills J, (2007) Ends and Means: The Future Roles of Social Housing in England, ESRC Research Analysis of Social Exclusion Report 34 Page 3 of 11

backgrounds and experiences, and this enhances the quality of life in local areas. Communities and Local Government (CLG) suggests that integrated and cohesive communities are based on people from different backgrounds having similar life opportunities, knowing their rights and responsibilities; and trusting one another and trusting local institutions to act fairly. These three foundations enable communities to build a shared future vision and sense of belonging, a focus on what new and existing communities have in common, alongside a recognition of the value of diversity; and strong and positive relationships between people from different backgrounds. 5 CIH believes that the principal provisions of the Equality Bill will contribute to this wider community cohesion agenda. 4. Housing and protected characteristics 6 4.1 In key ways, the affordable housing sector presents particular challenges and opportunities in relation to the protected characteristics outlined in the Equality Bill: 4.2.1 Age is an issue for housing because the population of the UK is aging. The UK Statistics Authority reports that the fastest growing age group in the population are those aged 80 years and over who currently constitute 4.5 per cent (2,749,507) of the total population. Housing organisations will need to consider the housing and support needs of an aging population and plan for adequate service provision. In addition, housing organisations are well-placed to encourage intergenerational mixing which may help alleviate the isolation of younger or older people. With reference to younger people, a recent report by the Joseph Rowntree Foundation (JRF) found that young people experience increased risk and uncertainty as they move into independent housing. Young people moving out of care or people with disabilities and gay and lesbian young people often face particular challenges in moving to independent housing. In addition, lower rates of housing benefit for people under 18 limit their housing choices. 7 Finally, a 2006 study for the JRF of the progress made over a 25-year period on 20 unpopular English council estates found up to 29 per 5 CLG (2008) The Government s Response to the Commission on Integration and Cohesion, London, CLG 6 The Bill provides several "protected characteristics" split into several categories (Section 4) age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation 4 Statistics Authority 2007: www.statisticsauthority.gov.uk 7 5 Heath, S (2008) Housing Choices and Issues for Young People in the UK, York, JRF Page 4 of 11

cent of residents were under 21. John Hill s 8 (2007) too showed higher concentrations of younger people in social housing. 4.2.2 Disability is an issue for housing because Labour Force Survey figures (2007) show nearly one in five people of working age (6.9 million or 19 per cent) in Great Britain are disabled. Nine out of ten families which include a disabled child are likely to experience problems with their housing (Prime Minister's Strategy Unit, 2005) and 28.6 per cent of disabled households live in homes that fall below accepted standards of decency compared to 25.9 per cent of nondisabled households (English House Condition Survey 2005). 4.2.3 Sex is an issue for housing because sex discrimination impacts negatively and results in unequal outcomes for men and women. Women are under-represented in senior management and leadership roles and men are underrepresented in administrative and health and social care roles. In 2006, men were more likely than women to own their home, with women being more likely to rent their homes from the social sector and to be accepted as homeless. 4.2.4 Race is an issue for housing because currently, 67 per cent of the nearly five million people from minority ethnic backgrounds live in the 88 most deprived wards in England. 9 BME people are more likely to live in social housing. Whatever their tenure, they are also more likely to suffer bad housing conditions such as overcrowding. 4.2.5 CIH would draw attention to the 2007 CRE Report Regeneration and the Race Equality Duty found that certain ethnic groups continue to experience an inferior standard of life, including in the areas of education, health, housing and employment. For example: o Ethnic minority households are nearly twice as likely as white households to live in homes that are non-decent (for reasons of disrepair, unfitness or need for modernisation) o Ethnic minority residents are more likely to experience a poor quality built environment, and to feel less safe in public spaces o Individuals from such groups are more at risk from crime than white people, and they are twice as likely as white people to be unemployed, and one and half times more likely than the overall working age population to be economically inactive 10 o In addition, the Singh Commission found around 90 per cent of people who arrived in the UK in the last two years, and are currently living in England, are in the private rented sector. The impact of this has been particularly felt at the lower end of the 8 Hills J, (2007) Ends and Means: The Future Roles of Social Housing in England, ESRC Research Analysis of Social Exclusion Report 34 9 Cabinet Office (2001) Improving Labour Market Achievements for Ethnic Minorities in British Society, London Cabinet Office 10 CRE (2007) Regeneration and the Race Equality Duty, London, CRE Page 5 of 11

market. The poor quality accommodation in which some migrants are housed may be a rubbing point not only for them but also for others living in the neighbourhood. 11 Better understanding of and action in response to housing quality issues in the private rented sector (PRS) will be important for community cohesion in wider society o Additionally, addressing the issue of access to a restricted supply of affordable (social) housing because this limits social mobility, often sees marginalised BME groups concentrated in poorer housing. The shortage worsens the tendency to blame migrants, asylum seekers etc for lack of housing or for alleged preferential allocation of social housing. 4.2.6 Religion or belief is an issue for housing because religious or other beliefs influence preferences and behaviours, such as negotiating relationships between men and women, washing requirements and facilities, and dietary needs. It is important for housing organisations to be sensitive to these in order to provide culturally appropriate services. In addition, disagreements over religious or other beliefs can potentially cause conflict in the community and damage good relations. 4.2.7 Sexual orientation is an issue for housing because many lesbian, gay and bisexual people still experience harassment and discrimination in many areas of life or have perceptions of less favourable provision in relation to public services. In 2007 Stonewall commissioned a poll which revealed 20 per cent of LGB people expected to be treated less favourably than a straight person when applying for social housing and 20 per cent of LGB people had experienced homophobic bullying in the workplace in the previous five years. In addition 20 per cent of LGB people have been the victim of one or more hate crimes in the past three years. 12 A 2005 Stonewall Housing and Shelter publication showed sexuality is an issue for housing because sexual orientation may be the issue when some young people present themselves as homeless if they have been thrown out of their family home because they are gay, lesbian or bisexual. In addition, LGB people may experience homophobic harassment or hate crime from their neighbours which may motivate them to request a transfer or not to want to live in certain neighbourhoods 13. 4.2.8 Gender reassignment is an issue for housing because the Gender Trust estimates between 1 in 4000 and 1 in 10,000 people are actually transsexual. Trans people experience a lot of social stigma and discrimination. They may be vulnerable to harassment and hate crime 11 CLG (2008) The Government s Response to the Commission on Integration and Cohesion (3.27) London, CLG 12 Hunt R and Dick S (2007) Serves You Right Lesbian and Gay People s Expectations of Discrimination, London, Stonewall 13 Stonewall Housing/ Shelter (2005) Meeting the Needs of Homeless Lesbian and Gay Youth, London, Shelter Page 6 of 11

in their communities; and housing workers need to be aware of how to provide appropriate treatment and services to transgender people. 5. Housing organisations and their public function 5.0 The affordable housing sector is complex consisting of a spectrum of different providers from local authority social housing providers, to arms length management organisations, stock transfer registered social landlords, housing associations and private sector organisations with a remit to provide affordable housing. 5.1 CIH notes that in chapter 11 of the draft for consultation of the statutory code of practice for services, public functions and associations which looks at what constitutes a service for the purposes of the Act, no reference is made to housing or housing related services (11.3). Although the list provided is expressly illustrative, given the size, scope and influence of the affordable housing sector, direct omission of reference to it is noticeable. Again in chapter 12 of the draft for consultation of the statutory code of practice for services, public functions and associations which looks at a definition of public functions, no reference is made to housing or housing related services (12.3). 5.2 The broad spectrum of provision leads to some complexity in relation to the impact of provisions in the Equality Bill across the affordable housing sector more widely. The recent legal case London and Quadrant (LQHT) versus Weaver (October 2009 14 ) confirmed that registered social landlords (housing associations) are private organisations which exercise a public function. Historically housing associations have argued that the function of providing rental housing is not of a public nature within the meaning of the Human Rights Act. Rather, it is essentially a private matter, governed by the law of the land and by the specific contract between landlord and tenant. Until the Weaver case, the courts had generally supported this view. In the Weaver case the High Court ruled that the management and allocation of housing stock by LQHT is indeed a function of a public nature and that LQHT is to be regarded for relevant purposes as a public authority. It went on, however, to decide that LQHT s actions had conformed to the requirements imposed by Article 8 on bodies fulfilling a public function. By extension, the forthcoming Equality Act will 14 The Weaver case is about the legal status of housing associations. LQHT served notice on an assured tenant under ground 8 (rent two months in arrears). Since the ground is mandatory, and the tenant could not dispute the arrears, her only defence was to argue that LQHT, as a registered social landlord, is discharging functions of a public nature for the purposes of the Human Rights Act. This would create an obligation on LQHT to show that its decision to evict conforms with the European Convention on Human Rights, specifically Article 8 (respect for the home). Page 7 of 11

impose obligations on any person who exercises public functions as defined in the Act and these functions apply in relation to a function of a public nature, exercised by a public authority or another person (including a private organisation). 15 5.3 Given the scope and influence of the affordable housing sector in terms of broader social wellbeing, CIH recommends that within the statutory code of practice for services, public functions and associations, greater consideration is given to the public functions of housing organisations in relation to the management and allocation of housing. It is particularly noticeable that there are no illustrative examples relating to the housing sector considered in chapter 12 of the statutory code of practice for services, public functions and associations which considers public functions. Although examples of good practice and how the forthcoming Act is likely to work are provided in the statutory code of practice for services, public functions and associations are spread through out the code; the use of illustrative housing examples is lacking. 5.4 The singular use of a housing context example within the statutory code is not un-problematic. The example (page 65) states A small council housing block has been renovated and made available to three Somali refugee families. Although the example then goes on to refer to unequal treatment from a local GP service, the scenario itself is potentially misleading because of its lack of clarity about the social housing allocations process; and could, by virtue of its paucity of detail, contribute to unjustifiable negative views about social housing allocations. A recent poll by Ipsos MORI for CLG found many people perceived the way social housing in particular is allocated to be unfair. 16 Additional research by the EHRC highlighted anxieties about the allocations process putting white British families at a disadvantage. 17 This is despite counter evidence which suggests that that 11 per cent of migrants arrived in the last five years were living in social housing, making up only 2 per cent of all social housing tenants. 18 The affordable housing sector has a key role to play in promoting good relations between different groups in society and the use of a more sophisticated example by EHRC could help to reinforce this positive role. 5.5 In addition, the comparative example cited on page 84 of a local authority requiring applicants for some of its services to demonstrate 15 EHRC (2010) Services, public functions and associations: statutory code of practice: draft for consultation, London, EHRC (3.3, 12.3, ) 16 CLG (2009) Attitudes to Housing: Findings from the Ipsos MORI Public Affairs Monitor Omnibus Survey (England), London, CLG 17 EHRC (2009) Social housing allocation and immigrant communities, London, EHRC 18 Hills J (2009) Towards a more equal society? London, Policy Press Page 8 of 11

that they have paid Council Tax in the area for the previous two years as intrinsically liable to indirectly discriminate against non UK nationals, for example those moving from other EU countries to work on a temporary basis provides an interesting and complex comparator for the evaluation of the way in which many local authorities administer their housing registers. It is not uncommon for local authorities to allocate additional points for time spent waiting on the housing register. Could such practices constitute a form of indirect discrimination against younger people, who by virtue of age, will have been on a housing register for a shorter period of time than older people; or non UK nationals, for example those moving from other EU countries to work on a temporary basis? An illustrative example at this point would be particularly informative. 5.6 In addition, under current homelessness legislation, a local authority s duties to provide housing assistance to applicants includes a habitual residence test. Under section 160A(1) and (3), and 185(2) of the 1996 Housing Act a person from abroad who is subject to immigration control (PSIC) cannot be allocated social housing and is ineligible for housing assistance, unless they are of a class prescribed in regulations made by the Secretary of State. A PSIC is defined as someone who requires leave to enter or remain in the UK (whether or not such leave has been given). 19 The question of whether an EEA national (or family member) has a particular right to reside in the UK will depend on their circumstances, particularly the economic status of the EEA national (e.g. whether he or she is a worker, self-employed, a student, or economically inactive). 20 An illustrative example looking at lawful exclusions in respect of a local authority s duties to provide housing assistance under current legislation which include some form habitual residence test, would be beneficial to illustrate the complexity of service delivery in this area. 6. Discrimination arising from disability and housing 6.1 The draft statutory code of practice for services, public functions and associations addresses the duty of providers of services to the public to ensure that disabled people are not treated less favourably than other people when using their services for a reason relating to their 19 Section 13(2) of the 1996 Asylum and Immigration Act 20 EEA nationals who are not habitually resident in the UK may be eligible for housing assistance if they are in the UK and have a right to reside because they are: a worker, a self employed person, a person who is an accession state worker; requiring registration who is treated as a worker for the purposes of regulation 6(1) of the 2006 EEA Regulations,1as amended; a person who is a family member of a person referred to above; a person with a right to reside permanently in the UK by virtue of regulation 15(c) (d) or (e) of the 2006 EEA Regulations; a person who left the territory of Montserrat after 1 November 1995 because of the effect on that territory of a volcanic eruption; and here as a result of his/her deportation, expulsion or other removal by compulsion of law from another country to the UK. Page 9 of 11

disability (7.1,7.2). There are emerging issues in respect of the Equality Bill in relation to housing and discrimination arising from disability. In the recent legal case Malcolm v Lewisham Borough Council (2008) the House of Lords decided that in DDA premises cases involving disability-related discrimination: a premises provider must know about a disabled person s disability, and possibly the effects of it, in order to discriminate against them and a disabled person must now compare their less favourable treatment with someone (disabled or not) who is in the same or very similar circumstances to them. 6.2 The introduction of clauses in the Equality Bill, which government and the EHRC deem necessary in order to deal with the issues that are unique to disability (as opposed to the other equality strands) issues; will present challenges to the way in which housing providers exercising a public function provide housing and housing related services to disabled people. For this reason, the inclusion of housing examples with regards to discrimination arising from disability and housing is important and not without recent legal precedent. 7. Conclusion 7.1 The affordable housing sector plays a pivotal role for equality, diversity and community cohesion in society. Our homes and the communities in which they are located directly influence our access to critical opportunities such as employment and education and our ability to participate in the social and economic life of the community. These factors determine our basic sense of belonging and our feelings of health and wellbeing 21. 7.2 The principle of equality that underpins the Equality bill is intended to promote and protect the dignity of all persons in society (p13). In this area, affordable housing providers occupy a pivotal role not only as service providers but also as community anchors with an influential and long-term stake in the local communities which they serve. In addition to compliance equality legislation affordable housing providers have a unique role to play in challenging prejudice and combating discrimination against individuals and groups with protected characteristics. The recent Pilkington case has highlighted scope for affordable housing providers to act as key partners in the community to tackle hate crime. Contact Officer: John Thornhill Senior Policy and Practice Officer Tel: 024 76 851 763 E: john.thornhill@cih.org 21 Thornhill J (2009) Equality, Diversity and Good Relations in Housing, Coventry, CIH Page 10 of 11

The Chartered Institute of Housing (CIH) is the professional body for people involved in housing and communities. We are a registered charity and not-forprofit organisation. We have a diverse and growing membership of over 22,000 people both in the public and private sectors living and working in over 20 countries on five continents across the world. We exist to maximise the contribution that housing professionals make to the wellbeing of communities. CIH provides a wide range of services available to members, nonmembers, organisations, the housing sector and other sectors involved in the creation of communities. Many of our services are only available to CIH Members, including discounts. Our products and services include: Training Conference and events Publications Enquiries and advice service Distance learning For further information, please contact: Customer Services: customer.services@cih.org Policy and Practice: policyandpractice@cih.org Education: education@cih.org Marketing & Communications: marketing.communications@cih.org Distance Learning Centre: dlc@cih.org Training, Conferences and Events: training.conferences@cih.org Publications: pubs@cih.org Careers: careers@cih.org To contact any of the above departments telephone: 024 76 851700 Page 11 of 11