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Law Seminar 2008: Homelessness and Human Rights by Sue Cripps

Legal

Homelessness and Human Rights

By Sue Cripps

Paper presented at the

Homelessness and Human Rights Seminar

Australian Human Rights and Equal Opportunity Commission

12.30 – 2pm, Monday 7 August 2008

133 Castlereagh Street, Sydney, NSW

Giving Voice to the Issues

Thank you for the opportunity to speak before you today. In opening, I acknowledge the traditional owners of the land on which we meet, the Gadigal Clan of the Eora Nation. I pay my respects to elders past and those present today.

I am the CEO of Homelessness NSW, the peak body for the adult homelessness sector. We represent homeless services for single men, single women and families. We work collaboratively with governments, other peak bodies, community organizations and the private sector to advocate for homeless people and services that support them.

Being homeless is a complex issue, created by the failure of a variety of service systems. Homeless people and those at risk of becoming homeless are affected by common themes that include social exclusion, an ineffective service system, lack of access to housing that is affordable to people on low incomes and a lack of support and supported accommodation services.

Through more than 20 years of working with homeless and marginalised people, I can clearly say that most people don’t choose to become homeless – it is not a life style choice. Being homeless is being without: without shelter, without resources, without support, without recognition, without power to influence society.

Every night across Australia almost 100,000 people are homeless1. The census tells us where these homeless Australians are staying. Half are staying with relatives and friends, twenty percent are living in boarding houses and other temporary accommodation, fifteen percent are sleeping rough on the streets of our cities and towns and fifteen percent find a bed in the Supported Accomodation Assistance Program (SAAP) homeless service system. We have to remember that the nature of homelessness means that people will not be static – whilst the census gives us this snapshot, people will be moving between the different states of homelessness throughout their experience.

Of this 100,000 people, 58% were male and 42% were female. 36% were aged 12-24 years and a further 10% were accompanying children under 12 years. What this tells us is that 46% of those counted as homeless in the 2001 Census were 24 years old or younger. I find this figure appalling as many of them will become the homeless adults of tomorrow.

Australia has legislation that defines how a person can be described as homeless – the Supported Accommodation Assistance Act 1994 (The SAAP Act). According to the act, a person is homeless if they do not have access to safe, secure and adequate housing. A person is considered not to have access to safe, secure and adequate housing if the only housing to which they have access:

  • Damages, or is likely to damage, their health; or
  • Threatens their safety; or
  • Marginalizes them through failing to provide access to adequate personal amenities; or the economic and social supports that a home normally affords; or
  • Places them in circumstances which threaten or adversely affect the adequacy, safety, security and affordability of that housing; or
  • Has no security of tenure – that is, they have no legal right to continued occupation of their home.
  • A person is also considered homeless if he or she is living in accommodation provided by a SAAP agency or some other form of emergency accommodation.

Today, I am going to talk about the impact of homelessness when looked at through the lens of the rights based agenda, giving examples to highlight the challenges faced by homeless people. I believe that we need to move to a model that supports homeless people to assert their rights, have expectations about the minimum level of support and assistance they should expect and thus assist their move to citizens able to participate in our democracy.

Right to Adequate Housing

We know from SAAP data generated by the Australian Institute of Health and Welfare that there is significant unmet demand for homeless assistance services2. On an average day in 2005-06, SAAP had to turn away about 356 people who were seeking immediate accommodation, around one third of them children. This does not sound like very many people. However, when thinking about unmet demand, we also need to think about those who do not present to a SAAP service as they expect that there will be no beds available. We know from the census data that SAAP only accommodates 15% of those considered homeless. I would suggest that this unmet demand figure is a significant undercount of the real demand for homeless assistance. If that 356 people were a new 356 people each day, that would represent more than 100,000 additional people who were homeless.

In attempting to deal with this unmet demand, state governments across Australia have established emergency temporary accommodation programs. These programs find vulnerable people housed in sub standard motels or caravan parks with few amenities and little access to support. At a national planning meeting of 100 experts in the homelessness field on 28 March 2008, a clear message was heard that it was unacceptable that we continue to place vulnerable homeless people in such situations. It will be interesting to see what recommendations get made regarding this issue in the coming months.

In regard boarders and lodgers, many are without effective legal rights in relation to their housing. In particular, many occupants face the following problems:

  • Eviction with little or no notice
  • Rent increases with little or no notice
  • No means of getting repairs done
  • No means of dispute resolution

In NSW, boarders and lodgers are excluded from protection within tenancy legislation. The current distinction at law between being a boarder and lodger and being a tenant, can be ambiguous, legally technical and difficult to prove. However, for homeless people and those at risk of homelessness, having no legal protection to their home just perpetuates their lack of stability and ability to establish themselves formally within their community. The current review of NSW tenancy law being undertaken by the Office of Fair Trading unfortunately does not appear to be considering rectifying this situation.

The issue of affordable housing supply has been generating major interest in the media recently. We see a real opportunity within the current federal arena for changes to be made that will significantly increase the amount of affordable housing available to people on low income.

This issue is an important one when we look at our responsibilities in regard homelessness prevention. I have recently become aware of families presenting to homeless services who are not what we would think of as “typically homeless”. The parents are in employment, the kids are going to school and on the whole, they are your average family. The issue forcing them to present to homeless services for assistance is poverty – they have been unable to find a property to rent within their price range. Given the tight rental market, the risk of poorer families being outbid is significant. All Australians have a right to safe, secure and affordable housing.

Much needs to occur both at a Federal and State level to resource an adequate supply of affordable housing and to address legislative imbalance affecting marginalized and vulnerable people.

Right to the Highest Attainable Standard of Health

Research undertaken in 20043 documenting psychiatric disorder in homeless men and women in inner Sydney identified that the prevalence of any mental disorder is four times higher among homeless men and women in inner Sydney than within the Australian general population.

A further study found that 10% of people in inner Sydney hostels had cognitive impairment4. A person with impaired cognition experiences problems with memory and orientation. This may lead to impaired understanding of surroundings, difficulty paying attention and an inability to concentrate on a conversation or task.

These studies confirm what homeless service providers regularly tell me: currently, people with more complex health needs are not getting their care and support needs met through their health and disability service providers, which often results in them becoming homeless.

The provision of comprehensive and responsive health programs is key to reducing the incidence of homelessness and requires significant planning, investment and restructuring of how services are delivered to reduce the incidence of people with complex health issues becoming homeless. In addition, we need to look at what planning and resources are required to resolve homelessness for those already in this situation.

The current environment afforded by the development of the Green Paper on Homelessness by the Federal government offers the potential to develop a comprehensive homelessness strategy that requires the joining up of services and systems to prevent people with these illnesses and disabilities falling through the cracks into homelessness.

Right to Safety and Security

Working with and hearing the stories of homeless people, I quickly became aware of the numbers that had experienced significant traumas that were unimaginable to me. A 1998 study of inner city Sydney homeless men and women5, tells us that 100% of women and 91% of men involved in the study reported at least one experience of extreme trauma in their life. The trauma events recorded included serious physical assault, witnessing severe injury or death, life threatening accidents, involvement in fire, flood or other natural disaster, sexual assault, torture and direct combat experience in a war. One in two women and one in ten men reported that they had been sexually assaulted.

Domestic violence is a major cause of homelessness for women. For women and children escaping domestic violence, we see that they are regularly failed by the attitudes that the community holds regarding their right to safety. Many of the women and children who are unable to access a SAAP service feel they have no other option then to return to a violent relationship, placing them at risk of further injury and possibly death. All Australian Governments need to address persistent areas of inequality between men and women particularly those like housing and income that make women more vulnerable to domestic violence.

Single women who are homeless are invisible to society. They mostly do not meet the criteria to access women’s refuges as they don’t have accompanying children. Without children, they are politically invisible as they do not come into contact with government through State government obligations for child welfare.

A report undertaken on homeless women in Western Sydney titled Accommodation in Crisis – Forgotten Women in Western Sydney reported that the collection of data for homeless services in Australia is tied to demand for service6. As there are no services for homeless women in western Sydney, the women become invisible as they are not counted. The report noted that many women self managed their homelessness through couch surfing, rough sleeping and engaging in risky relationships to secure a roof over their head.

Children and young people comprise the single largest age group accessing homeless assistances services, accounting for 35% of SAAP service users in 2005/067. It is well documented that a period of time spent in child welfare or juvenile detention services increases significantly a child’s risk of becoming homeless.8 We also know that many of the adults in homeless services first came into contact with the homeless service system when they were adolescents. A study undertaken in Melbourne found that of the 5186 adult participants, 39% or 2200 of them had their first experience of homelessness when they were under the age of 18.9

From a policy perspective, we need to see comprehensive and responsive counseling and support services to meet the needs of these traumatized people when they first seek assistance. We need to see major campaigns that challenge the attitudes and beliefs that Australia holds to the rights of women to safety and security.

Special consideration needs to be given to the models developed for young people –we know that generic models for homeless people will not necessarily meet their needs. We can not apply adult expectations on young people and need to design services that align with adolescent development principles, whilst providing a safe place for them to transition into adulthood. We also need to see major investment in affordable housing to give all people access to a safe place to call home.

Right to an Income

Access to a reliable source of income is vital to prevent people from becoming homeless. Research has shown us the impact of breaching on Centrelink customers. Significant numbers of people have experienced homelessness due to 8 week periods of no payment when they have been deemed to have failed to comply with a participation requirement. In a study looking at the impact of breaching on income support customers10 41% of the 1000 participants surveyed reported that they were unable to pay their rent. A further 11% reported that they lost their accommodation.

People exiting institutional care such as psychiatric hospital or prison, and women and children escaping domestic violence are eligible for a crisis payment which is the equivalent of one week’s payment of their eligible benefit. Without proper discharge planning and case management, one week’s payment makes people exiting institutional care vulnerable to homelessness.

Homeless crisis services regularly report on the challenges that people exiting prison face in trying to re-establish themselves on a half payment. When you look at the costs that a person will have, such as travel to appointments, perhaps payment for methadone treatment, cigarettes and accommodation costs, I am not surprised that people feel overwhelmed when they first leave prison and perhaps consider that “life is easier on the inside”.

Young people have additional needs in regard employment, education, and training. They can struggle to be adequately remunerated to make their way in society, and can experience real difficulties in securing meaningful employment. Maintaining their education and putting in place the foundations for their future can be a challenge when their world feels that it is spinning out of control. Without adequate income levels, young people will struggle to sustain their education.

The role of our social security system must be considered as part of the development of Australia’s response to homelessness to better target financial resources and supports to prevent people from becoming homeless, or to help people that are homeless re-establish themselves in the community.

Right to Participation

I am sad to have to report that we do not have strong models across Australia for the involvement of homeless people in policy development and decision making processes. Unlike developments that have occurred in the mental health and disability fields, where strong consumer advocacy groups have been funded and supported across Australia, I am only aware of the Homelessness Advocacy Service, located in Victoria, as a funded and resourced service.

There are significant challenges when we look at how we might develop the systems to give voice and influence to homeless people. During the Olympics, and currently, there are people who have had experience of and are speaking on behalf of rough sleepers – those homeless people who sleep on the streets. From a policy perspective, we need to think about how we hear the voice of the broader homeless community, including children and young people, women and children escaping domestic violence and families to ensure that the range of issues and traumas that lead to homelessness are properly considered and solutions jointly developed.

The development of the mental health consumer advocacy movement as a funded and appropriate mechanism for gaining expert service user advice on mental health service and policy development was enshrined in the National Mental Health Policy released in 1992. This development has had a significant positive impact on the way mental health and disability services are developed and managed and has formed the mechanism for frank discussion between service providers and consumers.

We need to look to national and state planning mechanisms to give legitimacy and value to the homeless consumer advocacy movement. A well resourced and nationally endorsed strategy to empower and engage those who have experienced homelessness to provide expert policy advice is long overdue.

Right to Vote

Voting gives people the ability to influence the society in which they live. For people who are homeless it is a not only their democratic right, it also can give them self worth. They are being listened to. Federally, there are special provisions for homeless people to register on the electoral role and to vote on Election Day. However, few people know that this is possible.

There is no typical ‘homeless person’. The right and ability to vote is different for different people. For fairly obvious reasons many people who are homeless and rough sleeping carry minimal possessions, including limited, if any, identification. Homelessness NSW believes that any provision that forces people to produce proof of identity before voting could be discriminatory against people who sleep rough and other people who are homeless.

Homelessness NSW is aware that many women escaping domestic violence are unwilling to attend polling booths and would prefer to postal vote. In regional and remote areas this is particularly an issue. In some communities there are only 1 or 2 polling places. Currently there is no capacity for people to use ‘fear for physical safety’ as a legitimate reason to use a postal vote. This issue requires consideration to create an environment that makes it safe for women escaping domestic violence to participate in our democracy.

We look for legislative amendments that enfranchise homeless people at both the Commonwealth and State levels so that they can participate in our democracy.

Right to Freedom of Movement

We sometimes see outcry regarding homeless people congregating in public spaces. In particular, this occurs around people in major inner city urban areas. In NSW, we have the Protocol for Homeless Person’s in Public Spaces, introduced in 2000 to guide state government officials about how to relate to homeless people in public places11. This Protocol was developed as part of the planning around the Sydney Olympics.

The Protocol is based on the following principles:

  • All people have a right to be in public places, at the same time respecting the right of local communities to live in a safe and peaceful environment
  • All people have a right to participate in public activities or events
  • People will not be harassed or moved on from public places unless there is a threat to general security, their personal safety or if they are causing a disturbance which constitutes a breach of the peace
  • People who work in areas where their responsibilities are likely to bring them into contact with homeless people will receive sufficient information to enable them to assist homeless people if required, or help homeless people make contact with appropriate services if needed.

Whilst only applicable to people congregating in public spaces, it has been a useful tool to educate government officials about the issue of homelessness. As a protocol based on the rights of homeless people, it is useful in affirming those rights and provides a lens to advocate more broadly for those rights.

So what does this snapshot of issues mean for the future? When we recognize that homelessness is about more than houselessness, it becomes clear that an integrated approach that takes into account the many factors that lead to homelessness is required. We need to move to a model that acknowledges the rights of homeless people and those who are at risk of homelessness based on their fundamental human rights. Only then will we start to see the policy and legislative changes required to prevent people from becoming homeless.

Footnotes

  • [1] Counting the Homeless 2001 – ABS Catalogue No 2050.0
  • [2] Australian Institute of Health and Welfare (AIHW) 2007. Demand for SAAP accommodation by
  • Homeless people 2005–06: summary. SAAP NDCA report Series 11. Cat. no. AUS 97. Canberra: AIHW.
  • [3] Teesson, M., Hodder, T. & Buhrich, N. (2004). “Psychiatric disorders in homeless men and women in inner Sydney”, Australian and New Zealand Journal of Psychiatry, 38: 162-168.
  • [4] Hodder T, Teesson M and Buhrich N (1998). Down and Out in Sydney. Prevalence of Mental Disorders, Disability and Health Service Use among Homeless People in Inner Sydney, Sydney City Mission.
  • [5] Hodder T, Teesson M and Buhrich N (1998). Down and Out in Sydney. Prevalence of Mental Disorders, Disability and Health Service Use among Homeless People in Inner Sydney, Sydney City Mission.
  • [6] Robinson C & Searby R. Accommodation in crisis: forgotten women in western Sydney. UTS Shopfront Monograph Series No1.
  • [7] Australian Institute of Health and Welfare 2007. Homeless people in SAAP: SAAP National Data Collection annual report 2005-06 Australia. SAAP NDCA Report Series 11 Cat. no. HOU 156. Canberra: AIHW
  • [8] Human Rights and Equal Opportunity Commission (1989) Our Homeless Children, Canberra: Australian Government Publishing Service.
  • [9] Chamberlain, C. Johnson, G & Theobald, J. (2007) Homeless in Melbourne: Confronting the Challenge. Centre for Applied Social Research, RMIT University
  • [10] Eardley T, Brown J, Rawsthorne M, Norris K & Emrys L (2005). The impact of breaching on income support customers. Final Report. SPRC Report 5/05
  • [11]http://www.housing.nsw.gov.au/About+Us/Partnerships/Homelessness/Homeless+Persons+Protocol.htm