Chapter 13: The right to an adequate standard of living: focus on housing
Te tika ki te whai nohoanga oranga: tirohanga ki te tika whai whare

Everyone has the right to a standard of living adequate for the health and well being of himself and his family, including food, clothing, housing and medical care and necessary social services and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
(Universal Declaration of Human Rights, Article 25(1))

1. Introduction — Timatatanga

What is the right to an adequate standard of living?

The right to an adequate standard of living is fundamentally concerned ‘with the human person’s rights[1] to certain fundamental freedoms, including freedoms to avoid hunger, disease, and illiteracy’ (United Nations Economic & Social Council 2003, p.7). Housing is a primary determinant of an adequate standard of living.

Focus on the right to housing

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The right to adequate housing has been selected as a focus because it is of central importance for the enjoyment of all economic, social and cultural rights. Housing inequality is a significant contributor to social and economic inequality within New Zealand (Housing New Zealand Corporation (HNZC), 2004a, p.13). At a family level, housing represents the most significant single budget item for many New Zealanders. Additionally, the quality of housing directly affects people’s health, particularly in the case of children and old people. For children, security and adequacy of housing have far-reaching effects on their achievements in education and their development. Although it constitutes the focus of this discussion, the right to housing is just one element of the array of rights described by the International Covenant on Economic, Social and Cultural Rights (ICESCR), which was ratified by New Zealand in 1978. Housing remains a key indicator of the connections between adequacy of income, poverty, and all other economic, social and cultural rights. Recent work has reinforced the significance of housing and accommodation costs in both creating and sustaining poverty (O’Brien, 2001).

2. International context — Ki ngā kaupapa o te ao

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The International Covenant on Economic, Social and Cultural Rights (ICESCR) provides the most significant legal source of the right to adequate housing. Article 11(1) recognises the right of everyone to an adequate standard of living for himself and his family, including adequate clothing and housing, and to the continuous improvement of living conditions.

The ICESCR requires States to use all appropriate means, including legislative, administrative, judicial, economic, social and educational measures, as steps to ensure the realisation of the right. The most authoritative legal interpretation of the right to housing was produced as a General Comment in 1991 by the United Nations Committee on Economic, Cultural and Social Rights (UN CECSR) and provides a standard for assessing the performance of Governments in the provision of this right. The following issues were highlighted by both the Commission on Human Settlements and the Global Strategy for Shelter to the Year 2000: ‘adequate privacy, adequate space, adequate lighting and ventilation, an adequate basic infrastructure and adequate location with regard to work and basic facilities, all at reasonable cost’ (UN CECSR, 1991, p.1).

Housing adequacy

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The notion of adequacy differs from country to country (Craven, 1995) but the right to adequate housing should not be interpreted in a narrow sense as merely having a roof over one’s head. Adequate housing implies the right to live somewhere in security, peace and dignity. Certain elements need to be taken into account at all times, according to the Committee (UN CECSR, 1991). These are:

• security of tenure; for example, legal protection from eviction
• availability of services; for example, sustainable access to water, sanitation and emergency services
• affordability; for example, housing costs as a ratio of income
• habitability; for example, the soundness of physical structure, dampness, and crowding
• accessibility; for example, by all ethnic, racial, national minority or other social groups
• location; for example, in relation to employment and schools
• cultural adequacy; for example, taking into account traditional housing patterns

New Zealand’s ICESCR obligations

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As a State party to ICESCR, New Zealand has a duty to respect, promote, protect and fulfil the right to housing (UN HABITAT & OHCHR, 2002):

The obligation to respect the right to housing includes:

The State and all its agencies must abstain from any practice, policy or legal measure which violates the housing rights of individuals or groups or erodes the legal status of these rights.

The State must not restrict the right to popular participation and must accept the corresponding commitment to facilitate and create economic, social and political conditions conducive to self-help initiatives.

States are obliged to refrain from the practice of forced evictions of any persons or groups from their homes.

States must respect the right of people to build their own dwellings in accordance with their own culture, skills, needs and wishes – unless these activities impinge upon public health and safety.

The obligation to protect housing rights includes:

The commitment by the State and its agencies to prevent the violation of any individual’s rights to housing. The State must provide access to judicial redress if these rights have been violated.

The State must ensure effective protective measures against forced evictions, racial or other discrimination, harassment, and the withdrawal of services.

The obligation to fulfil housing rights includes:

The State has an obligation to actively and incrementally facilitate the full and progressive realisation of housing rights, to incorporate housing rights norms into housing and related policies, and to ensure the provision of adequate housing to vulnerable groups.

The indivisibility of the right to housing from other rights

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The right to adequate housing is integrally linked to other human rights such as the rights to freedom of expression and association, the freedom to take part in public decision making, the right to equality of treatment in the allocation of housing resources and access to finance, freedom from interference with privacy, and the right to be free from racial discrimination, particularly in housing allocation processes. Equally, other rights (such as the rights to work and to minimum remuneration) influence the degree to which the right to housing is enjoyed. The degree to which the right to adequate housing is enjoyed also impacts significantly on other rights, such as the right to health, security of person, and a range of children’s and family rights. The indispensable and indivisible significance of adequate housing to the enjoyment of other human rights is reflected in international statements of law and policy. These include:

• International Covenant on Civil and Political Rights (ICCPR) Article 17 protects persons from arbitrary or unlawful interference with their home
• International Convention on the Elimination of Racial Discrimination (ICERD) Article 5(e)(iii) prohibits discrimination on account of race, colour, national or ethnic origin with respect to the right to housing
• Convention on the Elimination of All Forms of Discrimination Against Women, (CEDAW) Article 14(2)(h) obliges States Parties to eliminate discrimination against women in rural areas in order to ensure that such women enjoy adequate living conditions, particularly in relation to housing
• Convention on the Rights of the Child (UNCROC) Article 27(3) obliges States Parties to provide, in cases of need, material assistance and support programmes to families and children, particularly with regard to nutrition, clothing and housing
• International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families (MWC) Article 43(1)(d) provides that migrant workers shall not be discriminated against in terms of access to housing
• International Convention Relating to Status of Refugees Article 21 provides similar protection against discrimination for refugees
• ILO Recommendation No.115 relates to workers’ housing.

3. The New Zealand context — Ki ngā kaupapa o Aotearoa

The New Zealand legislative and regulatory environment

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The right to housing is not specifically provided for in any New Zealand legislation, although it is addressed in a range of central government housing policies, laws and entitlements, including:

• Building Act 1991[2] (including The Building Code, Schedule 1 of the Building Regulations 1992)
• Housing Improvements Regulations 1947 (under the Health Act 1956)[3]
• Residential Tenancies Act 1986 [4]
• Local Government Act 1974 (where still in force)
• Local Government Act 2002
• Resource Management Act 1991 [5]
• Fire Service Act 1975.

These enactments set out both general and specific requirements and standards regarding building design, construction and maintenance in the provision of housing by both the private and government sectors.[6] The Bill of Rights Act 1990 (BoRA), the Human Rights Act 1993 (HRA) and the Residential Tenancies Act 1986 also provide protection from discrimination in housing.

Particular themes are evident in the housing-related discrimination complaints received by the Human Rights Commission. These include: the lack of affordable housing (including difficulties accumulating a rental bond payment), the poor standard of housing (particularly in rural areas), and restrictions on zoning. Complaints have also been received about restrictive covenants placed on property in some residential areas with the intention of preventing the provision of supported accommodation for disabled people. Individuals with experience of mental health issues have complained about conditions in boarding houses. The Residential Tenancies Act will soon be amended to include boarding houses.

New Zealand Housing Strategy

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In keeping with its international obligation to promote and achieve the right to adequate housing, the Government is currently developing a New Zealand Housing Strategy. Accordingly, public submissions have been called on a recent report: Building the Future: Towards a New Zealand Housing Strategy – A Discussion Document (HNZC, 2004a). [7]

The report provides an up-to-date picture of the current housing environment in New Zealand against which to consider how well the right to adequate housing is enjoyed and notes that:

• New Zealand is different from other developed countries in its mix of housing tenure (ownership, private rental or social rental) and the nature of construction
• home ownership rates have dropped from 74 percent a decade ago to 68 percent, but remain high by international standards
• the private rental sector is 26 percent of the housing market
• New Zealand has a comparatively low social housing provision at six percent, compared to many European countries where social housing makes up 25–40 percent of the market
• there are changes in housing affordability, with concerns about the declining ability of younger and lower-income households to enter home ownership
• both rent and house prices have grown faster than income since 1993
• changing demographics, such as delayed child bearing and an ageing population, different conceptions of family structures and diverse lifestyle preferences, impact on housing demand. Supply and demand are also influenced by the nature of workforce participation and the dynamics of interest rates and lending arrangements
• Auckland suffers the greatest housing supply pressure. Over half of the households on Housing New Zealand’s waiting list for state rentals are in Auckland, where there is the greatest concentration of migrants in New Zealand and a younger profile of Maori and Pacific populations
• housing costs are usually the largest part of many people’s spending and determine what is left over for food, clothing, transport, recreation, sport, educational, and medical costs
• insulation has only been a requirement since 1977, and much of New Zealand’s largely wooden housing stock remains uninsulated. It requires frequent maintenance, and its longevity has not been tested compared with housing overseas that has been in continuous use for several hundred years
• increasingly, the home is not only the centre of family life and of leisure but also of work
• widespread cultural beliefs about ‘owning your own home’ persist in New Zealand. These are linked to our perceptions of quality of life, the ‘do it yourself’ ethic, and the desire for space, privacy, security of tenure, and enjoyment of the environment.

In addition, the housing industry has a significant impact on the national economy through employment in the construction industry and property investment.

Central government

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The New Zealand Government retains very significant fiscal, regulatory and supply roles in the provision of housing, although the policies and political ideologies that structure the State’s engagement may change over time.[8]

Broadly, and in the absence of any legislation that directly affirms New Zealanders’ right to housing, government policies and housing provision continue to be based on needs. Housing New Zealand Corporation (HNZC) [9] owns 64,399 state subsidised and community group properties, and rents vacant units primarily to people on low incomes, giving priority to people in temporary accommodation or housing that is detrimental to their health. There are about 179,400 state tenants (HNZC, 2003a). In the 2004 Budget, the Government announced plans to make improvements to 856 state homes and build another 1,054.

HNZC responds to transience and overcrowding in temporary housing primarily through the provision of subsidised state housing and its income-related rents policy. HNZC’s community group housing portfolio assigns properties to a range of organisations providing child and family refuge and community services.

HNZC is not only the country’s largest landlord but also the main adviser to the Government on housing and housing policy. HCNZ has developed several targeted housing policies, including the provision of a service to assist physically disabled people into modified homes.

HNZC’s Rural Housing Programme is designed to address substandard or unsafe housing in targeted rural areas. This programme encourages partnerships with community groups, iwi, Maori, and others in Northland, the East Coast and the Eastern Bay of Plenty. Further funding of $4.8 million is provided for substandard housing in these areas in 2004–2005. HNZC has also entered into partnerships with district health boards to develop the Healthy Housing Programme, which aims to reduce cold, dampness, overcrowding [10] and the associated risk of meningococcal and other crowding-related diseases. The HNZC Community Renewal Programme actively promotes safe, healthy and energy-efficient housing in six areas (Aranui, Fordlands, Clendon, Talbot Park, Eastern Porirua and Northcote). Through several small-scale programmes, such as the Low Deposit Rural Lending Programme (LDRL), HNZC also provides a number of different types of loans for buying, building or repairing homes for specific rural areas or for Maori land ownership.[11] General lending is also available for those who cannot obtain a mortgage elsewhere. Loans are available for low-income homeowners for repairs and improvements.

In December 2000, after eight years of market rents for state tenants, the Government reintroduced, as an element of the Ministry of Social Development’s social assistance provisions, income-related rentals (IRR). Policy changes such as this highlight the vulnerability of tenants to the ways in which the ‘affordability’ of housing is interpreted by both the State and by the ‘market’ policies of private-sector housing providers. The affordability of housing, particularly within the current climate of rapidly escalating house prices in the metropolitan areas, is an area of growing concern for many New Zealanders as housing-related expenditure accounts for an increasing proportion of income. In September 2003 the Government, in partnership with Kiwibank, developed a subsidised mortgage insurance programme designed to make access to home ownership easier for low to modest earners.

Financial tensions exist between income levels and housing costs. One in six New Zealand households in 2002 were recipients of the state-funded Accommodation Supplement (Human Rights Foundation et al., 2003). Entitlements to the accommodation supplement and other benefits under the Social Security Act 1964 are administered by Work and Income New Zealand (WINZ), an agency of the Ministry of Social Development (MSD).

The Ministry of Housing’s principal functions are to provide information, advice, and a service to resolve disputes between tenants and landlords, and to administer residential tenancy bonds. The Ministry also provides administrative support to the State Housing Appeals Authority and monitors the performance of HNZC, advising the Minister of Housing on the Corporation’s performance. Other government agencies that have an influence or interest in the provision, affordability and adequacy of housing are the Ministry of Social Development, Ministry of Health, Ministry of Pacific Island Affairs, Te Puni Kokiri, the Ministry of Economic Development and the Department of Internal Affairs. [12]

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