Updated Fact Sheet: Northern Ireland Human Rights Commission legal action on housing points scheme

In December 2023, the Northern Ireland Human Rights Commission (the Commission) sought leave to issue judicial review proceedings against the Northern Ireland Housing Executive (NIHE), in relation to the design and operation of their Housing Selection Scheme (the Scheme), and the Department for Communities (DfC) as the government department responsible for housing in Northern Ireland.

On 8^th October 2024, The Northern Ireland Human Rights Commission’s legal challenge was heard at the Judicial Review Court at the Royal Courts of Justice, Belfast.

The Judge requested both parties return for the case to reconvene on 4^th February 2025.

Why has the Commission decided to issue this case?

The Commission believes that there are flaws in both the design and the implementation of the Scheme. This means that that there are people who are in danger who are not being adequately protected by the Scheme. This impacts negatively on the human rights of a wide range of individuals who are not receiving an award of Intimidation points.

Regarding the design, the Scheme excludes, for example, those individuals who have experienced domestic violence, gender-based violence, intimidation on grounds of nationality, intimidation from within their own community, and other kinds of intimidation, violence and anti-social behaviour. The Commission believes that such people deserve protection from intimidation and in failing to do so, the NIHE and DfC could be breaching their human rights.

As to implementation, the Commission is arguing that due to the way the Scheme is applied some people who fall within it are not receiving the points they should be entitled to.

When an individual is refused intimidation points, they are not always given reasons for this decision. There is no formal appeal mechanism meaning that often individuals do not know how to challenge a decision. The only mechanism which is open to them is to make a formal complaint to the NIHE, which is time consuming, lengthy and may be difficult for someone who is homeless.

A person who has been refused intimidation points may have difficulties being rehomed in a safe place. This exposes them to the risk of homelessness. Where they must leave their home to escape threats to their safety, they might be provided with temporary accommodation, for example, in a hostel. This type of accommodation may not be suitable for a variety of reasons. The only available hostel may be many miles away from their family, friends, doctor, place of work and support network. Without adequate points they might be left there for a very significant period of time- many months or even years. Alternatively, to avoid this situation they may feel it necessary to stay in the area where they have been threatened and this places them in danger.

What is the Housing Selection Scheme?

The NIHE is a public housing authority in Northern Ireland, which operates the Housing Selection Scheme. The Scheme is a set of rules the NIHE uses when doing an assessment to allocate housing.

When people apply for housing, their position on the waiting list for social housing is determined by the points they are awarded in application of the Scheme.

Points are awarded under a number of categories according to housing need, one of which is intimidation. 200 points are allocated to a person who is awarded intimidation points. This allows them to be rehomed more quickly.

Rule 23 of the NIHE Housing Selection Scheme entitles individuals to intimidation points if a number of criteria are met:

“ 1. The Applicant’s home has been destroyed or seriously damaged (by explosion, fire or other means) as a result of a terrorist, racial or sectarian attack, or because of an attack motivated by hostility because of an individual’s disability or sexual orientation, or as a result of an attack by a person who falls within the scope of the Housing Executive’s statutory powers to address neighbourhood nuisance or other similar forms of anti-social behaviour.

2. The Applicant cannot reasonably be expected to live, or to resume living in his/ her home, because, if he or she were to do so, there would, in the opinion of the Designated Officer, be a serious and imminent risk that the Applicant, or one or more of the Applicant’s household, would be killed or seriously injured as a result of terrorist, racial or sectarian attack, or an attack which is motivated by hostility because of an individual’s disability or sexual orientation or as a result of an attack by a person who falls within the scope of the Housing Executive’s statutory powers to address neighbourhood nuisance or other similar forms of anti-social behaviour.”

What human rights are engaged in this case?

The Commission is arguing that a number of rights contained in the European Convention on Human Rights (ECHR) are engaged.

Article 2 – The right to life. The Commission recognises that individuals lives could be in danger as a result of not being awarded enough points to move up the waiting list for rehoming based on The Scheme.

Article 3 – Freedom from torture, inhuman & degrading treatment. The Commission believes that the limitations of The Scheme could result in increased risk to individuals’ mental and physical integrity. For example, in instances of domestic violence a victim may be forced to stay with an abuser because they do not receive the number of points needed to move them up the waiting list but cannot stay in the temporary accommodation they are being offered as it might be unsuitable for children.

Article 6 – The right to a fair trial. The Commission argues that there is no proper formal appeals process within The Scheme. There should be a process in place whereby individuals are able to obtain the reasons for decisions made and a mechanism to appeal.

Article 8 – The right to private and family life. The Commission believes that the impact of The Scheme is detrimental to those who do not receive or qualify for intimidation points and who cannot return to their current residence. They are at risk of homelessness, not safe at home or relying on hostels.

Article 14 – The right to non-discrimination protects the enjoyment of the rights and freedoms set forth in the ECHR are secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. The Commission is arguing that the limitations and inconsistencies in the application of the Scheme may discriminate against individuals in the enjoyment of their rights, protected under articles 2, 3, 6, and 8 of the ECHR.

What powers does the NIHRC have?

The statutory functions of the Commission are available on our website, which include to keep under review the adequacy and effectiveness of law and practice relating to the protection of human rights in Northern Ireland.

The Commission has issued this challenge under its own motion powers, provided for under s.71(2B) of the Northern Ireland Act 1998, which enables a legal challenge without reference to an individual victim.

This was particularly appropriate in this case given the complexity and sensitivities attached to some of the circumstances raised, and because some of the people affected are vulnerable.

What is the timeline for taking action?

The Commission has issued proceedings in December 2023.

The Commission has also received statements of support/evidence from the following organisations which have been provided to Court:

• The Committee on the Administration of Justice Northern Ireland.
• Extern Northern Ireland and Victim Support Northern Ireland (both supported by The PILS Project NI).
• North Down and Ards Women’s Aid.
• Housing Rights.

The Commission’s Counsel is Yaaser Vanderman BL (Brick Court Chambers).