The right to respect for ‘home’ is not a right to be ‘housed’ and in Burton v UK the Commission considered that the right could not be interpreted so as extend a positive obligation to provide alternative accommodation of an applicant’s choosing. The concept of ‘respect’ will, however, impinge upon the notion of ‘suitability’ with regard to the positive obligation to provide a home for certain vulnerable people, under UK domestic legislation currently imposed on local authorities.
‘Home’ is wherever someone lives on a settled basis, but it includes a place of intended, as well as actual, residence, though not a home that is to be built in the future. It is not restricted to homes which have been lawfully established (although an interference in these circumstances might be more readily justified) and in Buckley v UK the Court found that a gypsy who had lived on previously unoccupied land for over 5 years without planning permission, was nonetheless entitled to respect for her home.
Residential and nursing homes will clearly fall within the definition of ‘home’ and closures will be vulnerable to challenge, meaning a pressing social need and not merely desirability will have to be established, particularly where a promise of a ‘home for life’ has been given. In the Coughlan case, decided before the HRA came into force, the Court of Appeal said that the decision by the Health Authority to close the home where there had been a breach of promise or legitimate expectation, without any overriding public interest, would have amounted to an unjustified interference. A judicial review challenge to a decision by Birmingham City Council to transfer a residential home to the independent sector, on the grounds that this might result in its closure and thereby violate articles 2 (right to life), 8 (home) and 3 was heard in the summer but rejected by the Court.
The right to ‘respect’ covers a right of access and occupation of premises, a right not to be unlawfully evicted or expelled and a right not to have one’s home destroyed, and also encompasses the right to enjoy the home without interference or intrusion and free from excessive noise and pollution. In Lopez Ostra v Spain the Court held that a failure to intervene or control the emission of noise, smells and polluting fumes from a waste treatment plant near the applicant’s home was an unjustified interference. By contrast, in Powell and Rayner v UK, the Court found that whilst the noise pollution from aircraft at Heathrow airport interfered with the applicant’s right to respect for home, the interference was justified for the well-being of the British economy. Local authorities may find that a failure to take steps to abate a serious nuisance amounts to a breach of someone’s art. 8 right, although any action taken may itself need to be balanced against another individual’s right to enjoy his or her home.
That case has recently been distinguished in another night flights case, Hatton v UK. Here, the ECtHR stressed that “in the particularly sensitive field of environmental protection, mere reference to the economic well-being of the country was not sufficient to outweigh the rights of others”. States had a positive duty to act to secure the rights of individuals under article 8. While it was, at the very least, likely that night flights contributed to a certain extent to the national economy as a whole, the importance of that contribution had never been assessed critically, whether by the government directly or by independent research on its behalf. In failing to carry out a proper and complete examination as to what the best solution to the noise problem would be, the State had failed to strike a fair balance between the UK’s economic well-being and the applicants’ effective enjoyment of their right to respect for their homes and their private and family lives.
The right to respect for one’s home will obviously impact on local authorities’ housing functions. Housing allocation policies are an area which may come under attack, and treatment of homelessness applications will also be scrutinised as to definitions of suitability, were families to be offered separate bed and breakfast accommodation, for instance.
In the Poplar Housing Association case it was held that it was not disproportionately disrespectful of a person’s home that there be provided in the Housing Act certain mandatory grounds for possession to be ordered by the court. The same has been held in the >Bracknell Forest case regarding the compatibility with Convention rights of the Introductory Tenancies regime.