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New Zealand Human Rights Commission Submissions |
Last Updated: 26 May 2015
Submission by the
Human Rights Commission
Inquiry into Boarding Houses in New Zealand
To the Social Services Committee
24 June 2011
Contact person:
Jack Byrne
Senior Policy Analyst
Email: jackb@hrc.co.nz
Phone: 09
375-8647
1.1 The Human Rights Commission welcomes this opportunity to make a submission to the Social Services Committee’s Inquiry into Boarding Houses. In particular, the Commission is responding to the Inquiry’s focus on whether the current legislative and regulatory frameworks provide adequate protection to vulnerable tenants.
1.2 In preparing this submission the Commission has drawn on material provided during consultation last year on the right to housing chapter in Human Rights in New Zealand 2010. Relevant submitters were approached for updated information about the impact of recent changes to the Residential Tenancies Act 1986 (RTA).
1.3 The Commission wishes to appear before the Social Services Committee to
speak to this submission.
2. Right to Housing
2.1 Human Rights in New Zealand 2010 is the Commission’s second comprehensive report assessing how well New Zealand meets international human rights standards. It highlights improvements since the first assessment in 2004 and identifies where there has been some deterioration. The Commission identified four priority areas where action is required to advance the right to adequate housing. These are:
2.2 All four priority areas are relevant to this Inquiry into Boarding Houses. In the absence of affordable housing and sufficient social housing provision, boarding houses are the only form of housing available for some vulnerable tenants. Universal design standards have a key role to play in improving the safety and accessibility of boarding houses, including for elderly or disabled people.
2.3 Fourthly, the New Zealand Definition of Homelessness, published by Statistics New Zealand in 2009, encompasses those in temporary accommodation (such as boarding homes and camping grounds) as these forms of housing are deemed unacceptable for permanent habitation. Yet anecdotal evidence suggests some boarding house tenants live in the same accommodation for many years. This submission recognises that boarding house accommodation may be an appropriate longer term option for some tenants and recommends measures required to better meet the right to adequate housing for these tenants.
3. Human Rights Approach
3.1 In its work the Commission applies the six elements of a human rights-based approach as a conceptual basis for assessing policy and legislation. This approach was developed internationally and adapted for New Zealand by the Commission. Its six components are:
3.2 This submission
begins by identifying the international human rights standards around the right
to adequate housing. New Zealand
is bound by these provisions, having ratified
the International Covenant on Economic, Social and Cultural Rights (ICESCR) and
is
required to regularly report to the United Nations on steps taken to
progressively realise these obligations.
4. International human rights
obligations
4.1 Article 11(1) of ICESCR provides the most significant legal source on the right to adequate housing. The most authoritative legal interpretation of this right is then found in a 1991 General Comment by the United Nations Committee on Economic, Cultural and Social Rights (CECSR) which considers countries’ compliance with ICESCR.[1] The extracts below provide some initial analysis of the breadth and significance of this right.
The right to housing should not be interpreted in a narrow or restrictive sense which equates it with, for example, the shelter provided by merely having a roof over one’s head ... Rather it should be seen as the right to live somewhere in security, peace and dignity.[2]
There remains a disturbingly large gap between the standards set in Article
11 (1) of the covenant and the situation prevailing in
many parts of the world
... the committee observes that significant problems of homelessness and
inadequate housing also exist in
some of the most economically developed
societies.[3]
4.2 The General Comment spells out the seven elements of the right to housing, namely:
4.3 Three of these elements are particularly relevant for this submission:
security of tenure, accessibility for vulnerable groups
and habitability of
boarding houses.
5. Security of tenure
5.1 CESCR’s General Comment provides the following guidance about legal security of tenure. It notes that security of tenure applies to all of the very diverse types of tenancy arrangements.
Notwithstanding the type of tenure, all persons should possess a degree of
security of tenure which guarantees legal protection against
forced eviction,
harassment and other threats. States parties should consequently take immediate
measures aimed at conferring legal
security of tenure upon those persons and
households currently lacking such protection, in genuine consultation with
affected persons
and groups.[4]
5.2 Prior to October 2010, when the Residential Tenancies Amendment Act 2010
(RTAA) provisions came into force, boarding houses were
not covered under the
principal Act. Provisions for boarding house tenancies have now been added under
Part 2A of the RTA. This is
a significant improvement for those in boarding
houses. However it does not provide the same security of tenure available to
other
tenants.
Notice of termination
5.3 Under section 51 of the RTA 1986, periodic, rather than fixed-term,
tenants must be given 90 days’ written notice, which
can be reduced to 42
days in three specific circumstances. These circumstances are: if the owner has
an unconditional agreement to
sell the premises with vacant possession; if the
premises are required as the principal place of residence for the owner or any
member
of that owner’s family; or if the premises are required for an
employee of the landlord and this has been agreed at the start
of the tenancy.
5.4 Sections 55 and 56 of the RTA also set out specific circumstances in
which the Tenancy Tribunal can terminate a tenancy for non-payment
of rent,
damage, assault or other breaches of the tenancy agreement. In the case of rent
arrears, a tenant must have been at least
21 days behind in payment of rent
before their tenancy can be terminated. The Tribunal has the discretion to make
a conditional order
if it is satisfied the tenant will pay any rent arrears
within a specified period and is unlikely to commit any further such breach.
If
those conditions are not complied with the tenancy is terminated.
5.5 The default notice that must be given to boarding house tenants, where no
reason is required, is just 28 days. This contrasts
with 90 days’ notice
that must be given to other tenants who do not have a fixed-term
tenancy.[5] Furthermore, someone in a
boarding house can have their tenancy terminated with just 48 hours’
notice if they have been told
in writing that their rent is in arrears and have
failed to pay the arrears within 10
days.[6] As already noted, this
contrasts with 21 days’ arrears for other periodic tenants.
5.6 One possible rationale for these significantly shorter periods of notice
for boarding house tenants is the assumption that boarding
houses are
predominantly temporary accommodation. This could also justify why boarding
house tenants are only required to give 48
hours’ notice to landlords if
they wish to terminate a tenancy
agreement.[7] The required notice for
other periodic tenancies is 21
days.[8]
5.7 There is very little data or research on boarding houses including the
extent to which they are used for longer term accommodation.
The Commission has
received anecdotal evidence that some primary health care providers have visited
people in the same boarding house
for up to 10 years. This suggests that some
tenants live in boarding houses for many months or years. In those situations it
is harder
to justify why boarding house tenants would not be required to give,
and be given, the same termination notice as other periodic
tenants.
5.8 Greater security of tenure for longer-term boarding house tenants would also respond to concerns that such tenants are vulnerable to being evicted at times when there is high demand for temporary accommodation. Submitters to the RTAA specifically cited evictions that occurred in Wellington during the New Zealand International Sevens tournament. Similar concerns have been raised about the potential for evictions in Auckland during the 2011 Rugby World Cup. At this stage, over two months before the event, the Commission is not aware of such evictions, but has been told that some boarding house tenants fear this may occur, particularly in instances where their boarding house is currently being renovated.
5.9 The Commission considers that security of tenure for longer-term boarding
house tenants should be consistent with conditions available
to other periodic
tenants. One possible threshold for defining longer-term tenancies might be
those longer than 90 days, as this
is the timeframe in the RTA that marks when a
fixed-term tenancy becomes periodic unless contrary notice has been
given.[9]
5.10 The Commission recommends that notice provisions for longer-term
boarding house tenants should be based on those for other periodic
tenants, as
set out in section 51 of the Residential Tenancies Act 1986.
Serious disruption
5.11 Section 66U(1)(a) of the RTA also enables a boarding house landlord to immediately terminate a tenancy. These provisions apply if the tenant has:
(i) caused, or threatened to cause, serious damage to the premises; or
(ii) endangered, or threatened to endanger, people or property; or
(iii) caused, or threatened to cause, serious disruption to other tenants.
5.12 ”Serious disruption to other tenants” is only a ground to terminate a tenancy within boarding houses. Other tenants who call the boarding house their home should be able to live there without serious disruption. Unlike flatmates, boarding house tenants do not have the ability to choose their co-tenants. This distinction is reflected in the relevant RTA provisions that entitle all tenants to the quiet enjoyment of their tenanted premises. For those periodic tenants not in boarding houses, quiet enjoyment primarily means “without interruption by the landlord”.[10] For those in boarding houses, this is extended to “without interruption by the landlord or another tenant of the boarding house”.[11]
5.13 The Commission has been given examples of situations where community advocates consider “serious disruption to other tenants” is being used excessively as a reason to evict some tenants. The Commission would strongly encourage tenants evicted under these provisions to take any outstanding concerns to the Tenancy Tribunal.
5.14 In addition, both landlords and tenants may require better guidance about what amounts to “serious disruption to other tenants”. There may be merits in defining “serious disruption” within section 66B of the RTA. Boarding house rules provide another avenue to improve transparency around expected behaviour. Tenants are also able to object to any house rule considered unlawful, including if it breaches the Human Rights Act 1993 or the Privacy Act 1993.[12]
5.15 The Commission recommends that landlords provide examples of “serious disruption to other tenants” in their boarding house rules.
Immediate termination
5.16 The Commission is aware of concerns about the ability for a landlord to immediately terminate a tenancy on any of the three grounds set out in Section 66U(1)(a) of the RTA. Specifically, these provisions give boarding house proprietors more powers than other landlords wishing to evict tenants for similar reasons.
5.17 Landlords wanting to terminate other types of periodic tenancies are required to make an application to the Tenancy Tribunal under section 55 of the RTA. In those circumstances, the Tenancy Tribunal must terminate the tenancy if it is satisfied that the tenant is responsible for substantial damage to the premises or for assaulting others occupying the premises or a neighbouring building. The Tribunal may only refuse to make such an order if it is satisfied the breach has been remedied, the landlord has been compensated for any related loss and it is unlikely that the tenant will commit any further such breach.[13]
5.18 A human rights approach involves identifying the relevant human rights of all involved and, in the case of conflict, balancing these various rights to maximise respect for all rights and right-holders. Within the context of a boarding house, the rights of other people sharing communal facilities do need to be taken into consideration.
5.19 The Commission notes the advantages of an independent Tenancy Tribunal, rather than a landlord, determining whether or not a tenant should be evicted without notice. The Tenancy Tribunal process is more transparent and preserves all parties’ right to natural justice. On the other hand, depending on the seriousness of the disruption, other tenants’ right to privacy, security and quiet enjoyment of the premises may be compromised if there are delays in obtaining a Tenancy Tribunal hearing.
5.20 These issues are often complex. In preparing this submission, and in its review of the right to housing, the Commission has not had the opportunity to fully canvas those directly involved about the range of possible scenarios and options for balancing rights and responsibilities.
5.21 The Commission recommends that the Select Committee consults fully with the boarding house sector about tenancy terminations without notice, including by asking the Tenancy Tribunal about its capacity to hear urgent applications from boarding house landlords in these circumstances.
6. Accessibility for vulnerable groups
6.1 In its General Comment, CESCR notes that countries “must give due priority to those social groups living in unfavourable conditions by giving them particular consideration. Policies and legislation should correspondingly not be designed to benefit already advantaged social groups at the expense of others.”[14] This position also reflects one of the six elements of the human rights approach, balancing rights and prioritising the needs of those most vulnerable.
6.2 It should be noted that boarding houses are typically a housing option of last resort for people who are not eligible for other forms of housing assistance. The Commission has been informed that many boarders are excluded from Housing New Zealand Corporation premises, the private rental market or better quality boarding houses because of a past debt to Housing New Zealand Corporation, a criminal record and/or mental health or alcohol or drug issues.
6.3 At the same time, anecdotal evidence suggests that the profile of
boarding house tenants is changing with a growing proportion
of single parent
families reliant on this form of accommodation. It is important that there are
sufficient protections available
to protect the right to housing for these
vulnerable tenants, alongside the rights of their fellow tenants.
Excluded boarding house tenants
6.4 Despite the 2010 changes to the RTA, short-term boarding house tenants and those in smaller facilities still have no security of tenure. This is because they fall outside the definitions of a boarding house or a boarding house tenancy in section 66B of the RTA. Boarding house tenancies are only covered by the RTA if they are for, or intend to be for, at least 28 days. In addition, these definitions exclude residential premises with less than six tenants.
6.5 The Commission recommends that the Select Committee consider how
greater security of tenure could be provided to short-term boarding
house
tenants and those in smaller facilities who are not covered under section 66B of
the current Residential Tenancies Act 1986.
Camping
grounds
6.6 The Commission has heard that, if boarding houses are a last resort option in cities, in rural and provincial areas that role is played increasingly by camping grounds. The RTA does not cover those living in camping grounds. Social service providers have suggested local authorities may be reluctant to enforce the Camping Grounds Regulations 1985 in situations where there are few alternative housing options. This potentially leaves people living longer-term in camping grounds vulnerable to unsafe and unhealthy living conditions.
6.7 The Commission recommends that resourcing is made available to ensure
the current Camping Ground Regulations are enforced as part
of coordinated
regional and national strategies to reduce homelessness. The alternative
option is to bring camping grounds under the RTA.
People with
experience of mental illness
6.8 As already noted, people with experience of mental illness are likely to
be over-represented within boarding houses. In its General
Comment 4, CESCR also
cites people with experience of mental illness as one of the disadvantaged
groups that struggle to access adequate
housing. It concludes:
Disadvantaged groups must be accorded full and sustainable access to adequate
housing resources . . . [and] should be ensured some
degree of priority
consideration in the housing sphere. Both housing law and policy should take
fully into account the special housing
needs of these
groups.[15]
6.9 Accordingly, the Commission welcomed the attention paid to vulnerable groups in the Social Services Committee’s September 2009 report on the RTAA, specifically to boarders facing mental health issues.[16] The minority view noted in that report recommended that a list of local mental health services should be made available to boarding house proprietors. This would be a resource for landlords concerned about the mental health of a boarding house tenant. It was hoped that such referrals would resolve some issues, enabling eviction to be used only as a last resort. Such a resource is also likely to be invaluable if an eviction occurs.
6.10 Providing such information and working alongside mental health support agencies would be consistent with the human rights approach, particularly the CESCR’s prioritisation of the right to housing for disadvantaged groups. It is also in line with requirements in the Human Rights Act 1993 to make reasonable accommodations so that people with disabilities enjoy the same rights as other tenants.
6.11 The Commission recommends that resources are provided to support better collaboration between mental health support services and boarding house landlords and tenants.
Christchurch boarding houses
6.12 Another vulnerable group identified by CESCR is “victims of natural disasters and people living in disaster-prone areas”.[17] The Commission has been told that many inner city Christchurch boarding houses have been destroyed by earthquakes. This presents some significant challenges.
6.13 At the same time, as Christchurch rebuilds, there is an opportunity to
develop a comprehensive housing response that addresses
the needs of the
homeless, boarding house and other tenants, landlords and homeowners. This
should enable the building of quality
boarding houses, recognising they may be
the most appropriate form of housing for some vulnerable groups.
7. Habitability of boarding houses
7.1 In its General Comment 4, CESCR defines habitability and its intrinsic
link to the right to health.
Adequate housing must be habitable, in terms of providing the inhabitants
with adequate space and protecting them from cold, damp,
heat, rain, wind or
other threats to health, structural hazards, and disease vectors. The physical
safety of occupants must be guaranteed
as well. The Committee encourages States
parties to comprehensively apply the Health Principles of Housing prepared by
the World
Health Organisation which view housing as the environmental factor
most frequently associated with conditions for disease in epidemiological
analyses; i.e. inadequate and deficient housing and living conditions are
invariably associated with higher mortality and morbidity
rates.[18]
7.2 An April 2011 Herald on Sunday article drew attention to children
living in what it described as “tiny, damp and sometimes squalid boarding
houses”.[19] When children are
dependent on inadequate housing it has the potential to severely impinge on
other rights including their right
to health and right to education. Yet in
situations where housing demand exceeds supply, and there are limited options
for vulnerable
tenants, there are likely to be fewer incentives for landlords to
improve facilities or for tenants to complain.
8. Accountability
8.1 Having looked at international human rights standards around the right to adequate housing, including guidance provided by the CESCR, this submission now turns to other key components of the human rights approach. Those most relevant to this Inquiry are accountability and empowerment.
8.2 In its General Comment, CESCR emphasises that for a country to satisfy its monitoring obligations under article 11 (1) of ICESCR it must demonstrate that it has “taken whatever steps are necessary, to ascertain the full extent of homelessness and inadequate housing within its jurisdiction . . . [including] detailed information about those groups within ... society that are vulnerable and disadvantaged with regard to housing".[20]
8.3 Human Rights in New Zealand 2010 prioritised the collection and
monitoring of official data on homelessness. In addition, there is inadequate
data available about
the number and range of people living in boarding houses
and their housing conditions. This information is essential in order to
monitor
the right to housing for vulnerable groups.
8.4 The Commission is concerned that there appears to be very limited regulation of boarding houses that fall outside the provisions of the RTA, including those in smaller facilities or where tenants intend to stay for less than 28 days.
8.5 Even for those boarding house tenants covered by the legislation, relying solely on a complaints-based system to the Tenancy Tribunal may not be sufficient for people dependent on boarding houses as a last resort. In the absence of other alternative forms of housing, tenants may be reluctant to complain and risk termination of their tenancy. This is a particular concern since boarding house tenants can be given 28 days’ notice without any explanation required from the landlord.
8.6 Effective regulation is required to prevent negative health impacts. Yet an Auckland Council presentation Homelessness in Auckland, given to the Social and Community Development Forum on 3 March 2011, stated “Boarding house regulations are inadequate for safe housing for a vulnerable population”.[21]
8.7 This Inquiry provides an opportunity to clarify the relationship between central and local government regulation of boarding houses when considering whether the current framework provides adequate protection to vulnerable tenants. For example, to what extent have local authorities introduced by-laws governing boarding houses and then monitored their effectiveness? What can be learnt from overseas regulatory models such as the United Kingdom’s Housing Health and Rating System and their investment to ensure all social housing meets this statutory measure of decent housing?[22]
8.8 The Commission recommends that local and central government agencies collaborate on research to measure the effectiveness of current regulations in ensuring boarding houses meet New Zealand’s international obligation to provide adequate housing.
8.9 If evidence shows that New Zealand’s existing individual
complaints-based system on its own is not effective, the Commission further
recommends that consideration should be given to registering and regularly
monitoring boarding houses, drawing
on local and international good
practice.
9. Empowerment
9.1 Rights cannot be realised unless they are fully understood. Only then are
people empowered to use those rights as leverage for
action and to legitimise
their voice in decision-making. Constraints on the right to housing limit the
extent to which those rights
are claimed. For example, some community housing
advocates have told the Commission they are wary of advising boarding house
tenants
with limited security of tenure to make complaints about the adequacy of
their housing. This is based on previous experiences where
tenants have been
given 28 days’ notice after making complaints about their housing
conditions.
9.2 As already noted by CESCR, “genuine consultation with affected persons and groups” is critical to ensuring the right to adequate housing.
9.3. The Commission recommends that the Select Committee takes significant
guidance from those working with boarding house tenants to inform
its
deliberations, including landlords committed to providing adequate housing.
10. Concluding comment
10.1 Supporting vulnerable boarding house tenants, including those currently experiencing mental illness, requires a coordinated approach. It is not the sole responsibility of tenancy advocates, landlords or mental health service providers. Nor can it be isolated from broader housing priorities such as increasing the supply and diversity of social housing provision, enhancing housing affordability, reducing homelessness, and implementing universal design standards to improve housing habitability, accessibility, cultural adequacy and safety.
10.2 The Commission welcomes further opportunities to support any policy work emerging from this Inquiry, particularly through providing relevant human rights advice.
Recommendations:
The Human Rights Commission recommends that:
[1] United Nations Committee on
Economic, Social and Cultural Rights (1991), The right to adequate housing:
Article 11(1) CESCR general
comment No. 4. Geneva: United Nations. Accessed on
21 June 2011 from http://www.unhchr.ch/tbs/doc.nsf/0/469f4d91a9378221c12563ed0053547e?Opendocument
[2] Ibid., paragraph 7.
[3] Ibid., paragraph
4.
[4] Ibid., paragraph
8(a).
[5] For both boarding house
and other periodic tenancies this notice reduces to 14 days’ notice for a
service tenancy as defined
in Section 2 of the RTA. Service tenancies involve a
contract of service or a contract for services between the landlord as employer
and the tenant as employee or contractor.
[6] Section 66U(1)(b)(i) of the
Residential Tenancies Act 1986
[7]
Section 66V(1) of the Residential Tenancies Act 1986.
[8] Section 51(2) of the
Residential Tenancies Act
1986
[9] Section 60A of the
Residential Tenancies Act
1986
[10] Section 38 of the
Residential Tenancies Act
1986
[11] Section 66G(1) of the
Residential Tenancies Act
1986
[12] Section 66P of the
Residential Tenancies Act
1986
[13] Section 55(2) of the
Residential Tenancies Act
1986
[14] UNCESCR, op. cit.,
paragraph 11
[15]
Ibid., paragraph 8(e)
[16]
Accessed on 24 June 2011 from http://www.parliament.nz/NR/rdonlyres/CCB75631-EB2E-4B4E-BE98-9B30482B51CC/153030/DBSCH_SCR_4500_ResidentialTenanciesAmendmentBill34.pdf
[17]
UNCESCR, op. cit., paragraph
8(e).
[18]Ibid..,
paragraph 8(d).
[19] Fisher,
David “Boarding House Horrors” in Herald on Sunday, 10 April
2011. Accessed on 24 June 2011 from http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10718311;
[20] UNCESCR, op. cit.,
paragraph 13.
[21]Accessed
on 24 June 2011 from http://www.aucklandcouncil.govt.nz/SiteCollectionDocuments/socialcommunitydevelopmentforumpresentation3032011.pdf
[22] Accessed on 24 June 2011
from http://www.homesandcommunities.co.uk/ourwork/existing-stock
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