5 Oct 2022

Emergency housing: Government warned of human rights risks years ago, documents reveal

8:00 am on 5 October 2022
Families take what can with them to emergency housing in a motel at $190 per night

The OIA documents show motels were deliberately not told about residents' rights through 2019 and 2020. (File photo.) Photo: RNZ / Cole Eastham-Farrelly

Documents released to RNZ have shown the government was warned emergency housing law changes put human rights in jeopardy - even by the Ministry of Health.

And officials deliberately stopped Ministry of Social Development (MSD) clients' rights becoming "common knowledge" - fearing the motels would stop taking in homeless.

The Human Rights Commission says there have "potentially" been rights breaches in the emergency and transitional housing system - it has been speaking with more than 30 parties about their experiences with the accommodation in the past month.

The law changes

Emails show that in 2019 the Ministry of Urban Development had been told by regulators that emergency and transitional housing was "clearly covered by the Residential Tenancies Act (RTA)".

The ministry was then concerned motels "may not be complying" with the law.

It argued a solution was to change the law, to make emergency and transitional housing providers exempt.

Cabinet backed the changes, which were then included in amendment legislation Parliament passed in 2020.

This prevented residents from taking motels to the Tenancy Tribunal and meant providers did not have to meet Healthy Homes standards, covering insulation and working smoke alarms.

The OIA documents show motels were deliberately not told about residents' rights through 2019 and 2020.

The public release of a Cabinet paper was delayed because "there is a risk that providers may choose to exit the market if the potential application of the RTA were to become common knowledge", housing officials wrote.

The Ministry of Urban Development said if providers quit contracts, up to 3000 households would be left homeless "without shelter, sleeping in cars or overcrowded housing".

It had already expressed concerns motels would be taken to the Tenancy Tribunal, facing "adverse proceedings" before exemptions started.

The ministry was also aware of the human rights risks.

It had mentioned these in drafts for Cabinet for months in 2020, saying the law amendments could be "inconsistent with the right to adequate housing".

The woman, who does not want to be named, making a coffee in the emergency house.

File photo of a woman in emergency housing. Photo: RNZ / Leigh Marama McLachlan

Ministry of Health opposition

The Ministry of Housing and Urban Development chose a small group of stakeholders for "in-confidence consultation" preceding the law change - and faced opposition from the Ministry of Health, emails showed.

One email from the public health team, including the then-director Dr Caroline McElnay, said "we cannot support the policy".

"The argument is that the risk of 'market exit' justifies the removal of human rights (and as a consequence, health protections). We cannot support this argument. We think the Crown is responsible for ensuring adequate housing for everyone."

The email said the law change would stop clients taking action in situations "that would otherwise warrant enforcement action" and that "undermines efforts to establish a culture of 'responsible landlords'".

"Removing legal rights for this group adds to existing inequity and is counter to the government's position on reducing child poverty/improving child wellbeing."

Advocacy groups' warnings

The Tenants Protection Association in Christchurch was another stakeholder consulted.

It wrote back to the Ministry of Housing and Urban Development saying the changes were "unjust" for emergency and transitional housing users.

"These are people trying to live with dignity, who have lived in dire situations for years," it said.

"We have had reports of people being told at 12pm to be out by 5pm. This is unacceptable."

Community Housing Aotearoa was also asked for confidential consultation, and said the changes were "not acceptable".

"We have consistently called for a rights-based approach."

Community Housing Aotearoa was also concerned by the government's confession it did not want moteliers' obligations to be "common knowledge" - fearing an exodus.

"It greatly disturbs us if providers are contracted by government and not informed of their responsibilities."

Human Rights Commission concerns

Human Rights Commission housing inquiry manager Vee Blackwood told RNZ detrimental effects of the Residential Tenancies Act amendments had been clear, from emergency and transitional housing users who have spoken to the commission in the past month, for its housing inquiry.

Blackwood said there was no obvious complaints resolution process for them, and this created "a serious disadvantage, and potentially breaches the human right to remedy".

Some clients' concerns about the habitability of their accommodation - including black mould and the absence of any cooking facilities - "would obviously have been addressed by the Residential Tenancies Act if emergency and transitional housing was not excluded", Blackwood said.

In Blackwood's view, since the amendments, "residents in emergency and transitional housing, have essentially fallen through the regulatory gaps, because they have had no accountability, under [the] RTA, but they've also had no protection under any other code of practice or framework".

"And so we've seen over the last two years, quite shocking situations in terms of potential rights breaches."

Last month, the Ministry of Housing and Urban Development released a draft Code of Practice that it had been working on since 2019.

Blackwood said this was "essentially two years overdue".

The code would not be finalised until next year. Blackwood said even then, it would not be enforceable until accommodation providers proactively incorporated the code into housing contracts upon renewal, which could take years.

Even after that, Blackwood said, "if an individual resident wants to assert their rights under the code, they can't complain to somewhere like Tenancy Services, about their legal rights, because it's actually a contractual issue".

These same concerns were raised by the Christchurch Tenants Protection Association in its feedback to government two-and-a-half years ago.

"A Code of Practice cannot replace the protections that the RTA offers tenants. A Code of Practice does not provide for the independent checks and balances that the RTA provides. Where does a tenant go if they believe they have been unfairly evicted?"

Former clients' scrutiny

Dunedin woman Olive was one ex-emergency housing client who had shared her story with the commission in the past month.

She told RNZ she was evicted last year with just a few hours' notice to pack her bags and she ended up living in a shed on gravel, without running water, for nine months.

She said she felt the system gave her no chance to defend herself.

"Not having that safeguard basically means that you have a whole lot of private providers that get a substantial amount of money to do their job, which is to temporarily house people, but they're not doing that in an ethical way, and there's no redress for people."

Olive in the shed she lived in.

Olive in the shed she lived in. Photo: RNZ / Tess Brunton

Whangārei woman Jessica Kaipo (Ngāpuhi) was living in motels last year and earlier this year with her daughter.

She said she was evicted after leaving her room messy with vomit in the toilet one day, when she went to hospital.

"I never had a voice. Even though I was sick. In a hospital and, when I got out, I pretty much had nowhere to go."

She said she felt constant fear in emergency housing because she knew she could be kicked out immediately if something went wrong.

"We weren't allowed to be ourselves," she said.

At one motel, she said her daughter "was playing in the garden and the owner came out growling her".

Kaipo wanted to intervene but did not - she was scared she would be evicted if she did.

Government, stakeholder response

Community Housing Aotearoa said this week it had "consistently and strongly advocated for transitional housing to be in the Residential Tenancies Act since 2018" and would continue to do so.

The Ministry of Health said it stood by its comments criticising the law changes.

Community Law chief executive Sue Moroney said housing officials' reasoning was "ludicrous".

"There's absolutely no evidence behind officials' view that if providers were required just to have some basic conditions in place, that they [motels] would choose to walk away and not provide accommodation, there's no evidence for that," she said.

"In fact, if that was the case, then you would have to question whether these providers ought to have been having anything to do with these vulnerable people at all."

Moroney said, instead, some motels had relied on emergency accommodation for financial support in the pandemic.

"They were never going to walk away from hundreds of millions of dollars worth of guaranteed taxpayer funding, when they had no other income coming in, because the borders were closed."

But in a written statement, Acting Housing Minister Peeni Henare (Ngāti Hine, Ngāpuhi) said amending the law "was a common sense move".

"Transitional and emergency housing, by its nature, does not align well with a number of the RTA's requirements, like around notice periods," Henare said.

"Currently many transitional housing providers have formal policies in place for managing complaints," he said.

But he acknowledged it was "important to have a neutral third party" for disputes, and for this reason, the newly-released draft Code of Practice for transitional housing, proposed independent resolutions.

Peeni Henare

Acting Housing Minister Peeni Henare. Photo: RNZ / Samuel Rillstone

Henare said sudden eviction was "very rare" and there was "ongoing monitoring" to ensure contractors met obligations.

Work started on the code in 2019 but Covid-19 had "adjusted timelines", he said.

In another statement, Ministry of Social Development housing manager Karen Hocking said emergency accommodation suppliers were commercial businesses, who set their own rules, but most "are supportive and understanding of our clients".

The emergency housing system was being reviewed, Hocking said.

"If a client has concerns about their privacy and safety where they are staying, they should get in contact with us immediately."

In response to Jessica Kaipo's criticisms, the ministry said there had been "a series of issues and complaints about Jessica's behaviour" and staff helped her into another motel after the eviction.

Last month, RNZ reported the average stay in emergency housing - which is designed to only last a week - had grown to more than 20 weeks, and some stays have extended to two years.

Transitional housing is designed for stays of up to 12 weeks - while people find a permanent home - but data provided to RNZ shows some people have lived in transitional housing for up to five years.

The Human Rights Commission still wants to hear from current or former clients of emergency and transitional housing for its housing inquiry.

  • Emergency accommodation users share stories with Human Rights Commission: 'Felt worse than jail'
  • Data reveals hundreds living in transitional housing for months on end
  • More people living in emergency housing for longer, some for up to two years
  • Emergency housing crisis damaging Rotorua's tourism reputation, businesses say
  • Rotorua on a 'precipice' as mayor meets with ministers about motels