Repossession of SSTs and article 8 of the ECHR
Recent caselaw concerning evictions and article 8 of the European convention on human rights (ECHR) has changed the law in relation to the defences that can be used against public authorities in possession actions.
Article 8 of the ECHR
Article 8 of the ECHR concerns respect for an individual's private and family life.
Article 8(1) states:
‘Everyone has the right to respect for his private and family life, his home and his correspondence’.
Article 8(2) states:
‘There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others’.
Article 8 and actions for possession by public authorities
The current position in relation to article 8 was put forward in McCann v United Kingdom [1] where the court stated:
“The loss of one’s home is a most extreme form of interference with the right to respect with the right to respect for the home. Any person at risk of an interference of this magnitude should in principle be able to have the proportionality of the measure determined by an independent tribunal in the light of the relevant principles under Art. 8 of the Convention, not withstanding that, under domestic law, his right of occupation has come to an end.”
Previously, the courts had been reluctant to engage article 8 as a defence in eviction actions.
The position in McCann was confirmed in Pinnock v Manchester City Council [2] and further supported in Hounslow LBC v Powell. [3] In Pinnock the Supreme Court stated that anyone who is at risk of being evicted from their home by their local authority should have the right to raise the question of whether the eviction is proportionate in light of article 8 of the ECHR. They should also have the right to have the proportionality determined by an independent tribunal, even where their legal right to occupy has come to an end.
What is the practical effect of Pinnock?
In effect, what this means is that article 8 defences to eviction actions by local authorities can now be heard in Scottish courts. In terms of SSTs the scope already exists for article 8 arguments to be heard, as the court must only make a repossession order in respect of a Scottish secure tenancy where it is reasonable to make the order. [4] As stated in Pinnock such arguments should be considered at the first calling of the case. [5] This means that where advisers feel that an article 8 right is being infringed by a possession action over an SST they should refer their case to a solicitor.
From the point of view of social landlords, they should be prepared to hear article 8 defences at the first calling of a case and attempt to have the article 8 issue dismissed at that level. It is important to note that social landlords are under no obligation to prove from the outset of any possesion action that they have not infringed any article 8 right - it is up to the defender to raise the issue and for the landlord to respond accordingly.
What is a ‘public authority’ in terms of the ECHR?
The ECHR does not just apply to local authorities but can also apply to housing associations. [6] The test is not a black and white one and depends on a housing association’s functions and make-up. The factors that determine whether a housing association is considered to be a ‘public authority’ or not are as follows:
what is the extent of their function in the allocation and management of housing?
are they publicly funded?
are they exercising statutory powers?
do they take the place of central or local government?
do they provide a public service?
From the Weaver case it seems likely that most housing associations would be considered a ‘public authority’. Especially where a large portion of their funding comes from the public purse, they are involved in the provision of low cost housing (which is a governmental responsibility), they are acting in the public interest, have charitable status and are subject to regulation which is aimed at government achieving its aims in relation to the housing of vulnerable people.
This means that housing associations as well as local authorities should be prepared to hear article 8 arguments in eviction actions.
Last updated: 29 December 2014