Public law and human rights defences

In repossession proceedings where a public authority landlord does not need to prove a ground for possession (ie the claim is taken on mandatory grounds), tenants can:

• raise a defence on public law grounds (for example defences based upon Equalities Act 2010), or

• when the sheriff court or tribunal cannot consider such a defence, ask to adjourn the proceedings to enable an application for judicial review to be made [1]

In all cases advisers should speak with a specialist housing law solicitor.

Local authorities are public authorities.

Registered social landlords are usually, but not always, treated as public authorities. Each case should be decided on its merits. [2] Where the nature of their functions are of a public nature, their actions will be open to a challenge on public law grounds. In most cases this will include the act of terminating a tenancy. [3]

Where the correct repossession procedure has been followed by the public authority landlord, a public law defence may be the only possible defence available for the following:

• a common law local authority tenant or occupier- for example a person in homeless temporary accommodation

• short scottish secure tenants

• service occupier of a public authority.

And possibly for a:

• joint tenant whose tenancy was ended by the other joint tenant serving a notice to quit, and the public authority landlord seeks possession after the notice to quit expires [4]

• relative/spouse/partner who lives in the property but does not have a right to succeed after the secure tenant dies

Wherever appropriate, it is advisable to refer the tenant to a solicitor as soon as possible before the date of the court hearing.

The following conventional judicial review grounds can be used to challenge decision to seek repossession. These can include when a public authority:

• fails to follow its own policy, without good reason

• ignores relevant factors

• takes into account irrelevant factors

• fails to direct itself properly in law (ie the authority fails to follow the statute or the case law which has interpreted how the law should be applied)

• fails to make findings of fact

• fails to give adequate reasons for its decision

• has fettered its discretion (often referred to as operating blanket policies) or has delegated decision-making to an unauthorised bodygoes back on a legitimate expectation that it would act in a particular way

• acts dishonestly or in bad faith

• comes to a decision which is perverse or irrational, ie a decision so unreasonable that no reasonable authority could have come to it (also known as a 'Wednesbury unreasonable' decision)

• is in breach of its statutory duties, including the duties: [5]

- under the public sector equality duty which applies to the carrying out of any function of any public authority, including the decision to take or continue repossession proceedings

- under Children (Scotland) Act 1995 to have regard to the need to safeguard and promote the welfare of children when discharging its functions.

A challenge made on conventional judicial review grounds will usually be made in cases such as the above which would normally be heard without a full hearing, for example where the ground for eviction is mandatory. The case must be 'seriously arguable' in order to proceed. [6]

In one case the court held that the failure of a local authority to follow its own policy on vulnerable people could be such an exceptional case and it was unlawful to raise proceedings against a non-secure tenant who had a personality disorder following a one-off incident of antisocial behaviour, rather than properly exploring alternative remedies. In contrast, the court held that a landlord had complied with its own policies when deciding to take possession proceedings against a vulnerable alcoholic who had engaged in repeated antisocial behaviour. Not every departure from the strict wording of a policy will involve an error of law, because policies must be subjected to a ‘purposive and pragmatic’ construction. [7]

Where a challenge is made on conventional judicial review grounds, the tenant is challenging the decision to bring proceedings or to continue with eviction proceedings. It is important to note that this defence is distinct from the 'reasonableness' test the court or tribunal must address when considering a claim for repossession on discretionary grounds.

The client should be referred to an experienced housing law solicitor. For more information see the page Judicial review

From October 2000, the Human Rights Act 1998 incorporated most of the rights contained in the European Convention on Human Rights (ECHR). This means that those rights can be enforced directly in UK courts.

Breaches of the following articles of the ECHR have been raised as defences to possession proceedings:

• article 8

• article 1 of the First Protocol

• article 6

• article 14.

In addition, repossession proceedings have been defended on the basis that the domestic law that allows possession to be granted is incompatible with the ECHR.

UK courts may consider principles drawn from international law when interpreting ECHR rights.

Article 8(1) of the ECHR provides that 'Everyone has the right to respect for his private and family life, his home and his correspondence'. The UK courts have held that eviction is an interference with the right to respect for the home. [8]

Article 8(2) allows a public authority to interfere with someone's Article 8 rights where the interference:

• is 'in accordance with the law'

• is done to further a legitimate aim of the state, such as ensuring public safety or the economic well-being of the country.

The European Court of Human Rights (ECtHR) noted that an interference with Article 8 rights will be considered necessary if it is proportionate to the legitimate aim pursued. [9]

The loss of one's home is the most extreme form of interference with the right to respect for the home and any person at risk of such an interference should in principle be able to have the proportionality of the measure determined by an independent tribunal, notwithstanding that under domestic law her/his right to occupation has lawfully come to an end. [10]

A place can be an individual's home even if s/he does not have any right to occupy it, and what constitutes 'home' in the context of Article 8 rights is a broad concept. In order to have the benefit of the right to respect for the home an individual is generally required to demonstrate that s/he has established sufficient and continuous links to a particular place.

The courts held that the right to respect for the home in Article 8 applied to a case of eviction of Travellers from unauthorised sites on which they had been living only for few months, and to people living on houseboats moored in a canal under a licence granted by the waterways authority. [11] In one case, interference with an individual's use of the garden to the rear of a property was held to be able to breach that individual's Article 8 rights and an order of the local authority to fell a tree in the garden was held to be subject to the proportionality review. [12]

Proportionality test

The Supreme Court held that 'where a court is asked to make an order for possession of a person's home at the suit of a local authority, the court must have the power to assess the proportionality of making the order, and, in making that assessment, to resolve any relevant dispute of fact'. [13]

The court only has to conduct a proportionality review if the occupier asks for such a review by raising an Article 8 defence during the possession proceedings.

Generally, an attempt to re-litigate the Article 8 defence, or raise it for the first time, at enforcement stage would constitute an abuse of process. Only in exceptional circumstances would the raising of an Article 8 defence at enforcement stage not constitute an abuse of process, for example where there was a fundamental change in the occupier's circumstances such as diagnosis of an incurable illness or a change in the relevant law after the making of the possession order but before eviction. [14]

The proportionality test concerns the need to balance the legitimate needs of society with that of the individual. In applying these principles, the High Court held that when deciding whether it was proportionate to evict an introductory tenant, the county court had to consider the facts at the date of the possession hearing, not at the date on which notice was served or when the decision to seek possession was upheld on review. [15]

It is important to note that the proportionality test is different from the 'reasonableness' test the court must address when considering a claim for possession on discretionary grounds.

For information about the (again different) proportionality test applicable in cases of disability discrimination under the Equality Act 2010 see Disability discrimination defences.  

Legitimate aim

In possession cases, the legitimate aims which a landlord may rely upon are: [16]

• the vindication of the authority's ownership's rights, and

• to enable the authority to comply with its public duties in relation to the allocation and management of its housing stock.

Private landlords

A residential occupier defending possession proceedings against a private landlord is not entitled to raise an Article 8 defence to prevent or delay the possession claim. Even where the circumstances are very exceptional and the tenant is vulnerable, the court does not have power to consider the proportionality of making a possession order where a private landlord's contractual rights entitle her/him to mandatory possession. [17]

The purpose of the ECHR is to protect private individuals from having their rights infringed by the state and other public authorities, not to alter the contractual rights and obligations between private citizens. The domestic housing legislation reflects the state's assessment of where to strike the balance between Article 8 rights of residential tenants and Article 1 (First Protocol) rights of private sector landlords to the peaceful enjoyment of their possessions when a tenancy ends.

High threshold

The Supreme Court considered that in most cases where there is an entitlement to possession under domestic law, there will be a very strong case for saying the order would be proportionate. The threshold for the county court to consider that an order would be disproportionate is very high, and for a defence to be seriously arguable the court must be satisfied that the facts are highly exceptional. [18]

The length of an occupier’s residence was not on its own be sufficient to support a proportionality defence to possession proceedings taken when the occupier did not have a statutory right to succeed (a 'second succession' case). Even when considered with other factors it is unlikely to be a weighty consideration. [19]

The proportionality argument is most likely to be relevant in respect of occupiers who are vulnerable owing to mental illness, physical or learning disability, poor health or frailty. The Supreme Court approved a suggestion by the Equality and Human Rights Commission that the issue may require the local authority to explain why it was not securing alternative accommodation in such cases. [20] The High Court held in one case that the fact a local authority had accepted and discharged its homelessness duty was a fundamental factor in considering that the decision to evict a very vulnerable trespasser from the land he had made his home was proportionate. [21] The county courts have been advised not to let understandable sympathy for a tenant to effectively lower the very high threshold. [22]

United Nations Convention on the Rights of the Child

The UK is a signatory to the United Nations Convention on the Rights of the Child (UNCRC), an international convention which sets out minimum standards for the protection and treatment of children.  At its heart is the principle in article 3(1), that in all actions taken by public or private social welfare institutions, the best interests of the child shall be a primary consideration. UK courts have used the principles contained in UNCRC to interpret ECHR rights, in particular rights under article 8.

Article 6(1) of the ECHR provides that 'In the determination of his civil rights and obligations… everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. …'

The Court of Appeal held that the internal review procedure under the English introductory tenancy [23] and demoted tenancy [24] regimes are both compatible with Article 6.

Also in English law it was held that a county court is not required to undertake a proportionality assessment in all possession cases for its actions to be compatible with article 6. [25]

Article 14 prohibits discrimination in the enjoyment of other ECHR rights. It can only be invoked where another convention right is engaged, or where an issue arises in the proceedings that is within the 'ambit' of another ECHR right. Being within the 'ambit' of a right means that article 14 can be used where the other right could not, perhaps because the landlord is not a public authority.

Article 14 provides that the 'enjoyment of the rights and freedoms [26] shall be 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 proportionality test explained above applies, so a court may find that discriminatory treatment is justified where it furthers a legitimate aim of the state. States have a 'wide margin of appreciation' (ie discretion) in how they implement policies concerned with housing.

In a case concerning the eviction of an almshouse occupier, [27] the Court of Appeal held that article 14 could be pleaded in conjunction with article 8 because the issue of the lack of security of tenure afforded to almspersons was within the ambit of article 8. Article 8 could be not used on its own because the almshouse provider was not a public authority. However, the Court, in considering whether the almsperson was discriminated against when subjected to possession proceedings compared with other social housing occupiers who had greater security, held that any such discrimination fell within the 'margin of appreciation' allowed. Giving security of tenure to almshouse dwellers would stop almshouse charities from ensuring that only qualifying people lived in the accommodation. The denial of security provided a fair balance between the interests of charities and those of current and future almspersons.

The Court of Appeal in the case above refrained from deciding if being an almshouse occupier was a 'status' such as to engage article 14. In another case, [28] where it was argued that being a service occupier constituted a status for the purpose of article 14, the Upper Tribunal stated that, even if it were a status (which it doubted), it would be a 'peripheral' personal characteristic, and not 'within the most personal area where discrimination is particularly hard to justify'. [29] Where a 'status' is chosen (as opposed to something that is innate), it will be subject to less scrutiny. [30]

Where the domestic law that allows the eviction to be granted is incompatible with article 8, if the sheriff or tribunal cannot interpret that law in such a way as to make it compliant with article 8, it can be asked to adjourn proceedings to enable Judicial review to consider the issue of compatibility.

In England, the High Court dismissed an application from a tenant with basic protection who tried to argue that section 3 of the Protection from Eviction Act 1977 was incompatible with article 8. [31] In a different case, it also held that the county court did not breach article 6 when it refused to grant a further extension of time and a transcript at public expenses to the tenant where s/he did not have enough funds to obtain it. [32]