Human rights defences and possession

Alec Samuels analyses the case law in relation to the use of human rights as a defence to an application by the local authority for a possession order.

The local authority landlord claims possession. The tenant or licensee has been a bad tenant, in arrears with the rent, in breach of condition, a nuisance and annoyance, or guilty of anti-social behaviour. The facts are proved. The traditional grounds for possession are proved. Can the tenant or licensee rely upon his human rights as a defence, e.g. his right to private and family life and home article 8?

The short answer is yes, the landlord will succeed if possession would be necessary in a democratic society, for a legitimate aim, and proportionate: Hounslow LBC v Powell [2011] UKSC 8, [2011] 2 AC 186, paras 9-19, the Powell case; Manchester City Council v Pinnock [2010] UKSC 45, [2011] UKSC 6, [2011] 2 AC 104, the Pinnock case; and Corby BC v Scott [2012] EWCA Civ 276, the Corby case. Pinnock and Powell were summarised and approved in Akerman-Livingstone v Aster Communities Ltd [2014] UKSC 15. The threshold for possession for the local authority is relatively low. Exceptional circumstances are likely to be required in order for the tenant or licensee to have any hope of success. Pinnock para 45. 

Home

Establishing that the tenant’s “home” is in issue is unlikely to cause difficulty: Powell paras 33 and 77. But just two days in a caravan might not be seen as “home”: Pinnock para 61. 

Sympathy

The tenant was guilty of anti-social behaviour. Unfortunately the tenant was the victim of a serious criminal assault. Sympathy is not a relevant factor in determining the proportionality or disproportionality of an order for possession. Proven harm to the tenant if evicted would however be relevant: Corby. 

Alternatives to possession

The local authority should consider possible alternatives to seeking possession. For example, a noise abatement order; or an acceptable behaviour agreement; or the provision of social support; or an enquiry of the police to see if there are any relevant criminal convictions; or a warning; or a review of the situation involving the tenant or licensee: Camden LBC v Stafford [2012] EWCA Civ 839, [2012] 4 All ER 180; [2012] HLR 39. 

The facts

Whoever is seeking possession must prove the facts allegedly justifying an order for possession. In the event of dispute the judge must find the facts in the normal way: Powell. In practice one would expect the evidence of a responsible local authority normally to carry more weight with the judge than the evidence of an alleged unsatisfactory tenant or licensee. The judge will normally presume or assume that the local authority is acting properly in accordance with their public housing duties and responsibilities (Powell para 35), but the local authority should give short reasons for their action (Powell para 36), e.g. the fulfilment of the duties to manage the housing stock in the public interest. The judge need not investigate the administrative management of their housing by the local authority; but he should investigate the personal circumstances of the tenant or licensee if a seriously arguable case has been raised: Powell paras 88-94.  Pinnock paras 52-54.  The right to a review protects the tenant. 

Seriously arguable

If T wishes to plead and argue human rights then he must have at least a seriously arguable case, it is no good just putting forward some abstract assertion. If there is no hope of success the assertion may be summarily dismissed: Pinnock para 61; Powell para 34. If human rights are to be raised this should be done at the earliest possible stage in the proceedings so that the judge may see whether he should allow the matter to take up time at a hearing: Corby. If the local authority have held a fair review and found against the tenant the tenant will have an even harder task to persuade the judge to hear him: Corby. 

Notify

Whenever the question of possibly seeking possession arises the local authority should take care to notify the tenant or licensee, formally in writing, of the concern, so that he has the opportunity to explain himself and to mend his ways: Camden LBC v Stafford [2012] EWCA Civ 839, [2012] 4 All ER 180, [2012] HLR 39.

Proof

It is up to the tenant relying upon human rights to satisfy the judge: Powell. The landlord should prove and press the traditional and reasonable grounds for possession, Housing Act 1985 s 84 schedule 2, but be prepared for a human rights defence, which will normally turn upon proportionality. 

Reasons

As always the judge should give reasons for his decisions, particularly when he is deciding a human rights point, which can be inherently vague, uncertain and judgmental: Powell. Provided that he shows that he has considered the requirements of article 8 he need not elaborate at length: Powell paras 36-37 and 80.

Probationary tenancy

These days the tenant is often granted only a probationary or introductory tenancy, short of a secure tenancy, for an initial period, in order to see whether he is a demonstrably responsible tenant. If during this period he breaches the tenancy the prospects of a human rights defence will be very slight: Powell paras 44-45, Southend-on-Sea BC v Armour [2014] EWCA Civ 231, [2014] HLR 23. Though the tenant has the statutory right to a review. The same principles apply to demoted tenancies as apply to introductory tenancies: Pinnock paras 68-88.

The landlord gave him another chance

Following complaint from neighbours about anti-social behaviour one can understand the local authority trying to smooth things down and warning the tenant and giving him another chance. If nonetheless there is a repetition the local authority can advance a stronger case for possession; although the tenant will claim that the original anti-social behaviour could not have been that bad if the local authority did not then seek possession. 

If the local authority issue a notice to quit or initiate proceedings or obtain an order for possession but then desist, then allow the tenant to remain in occupation, and then subsequently seek possession because of renewed anti-social behaviour by the tenant, the local authority could run into awkward legal problems over whether or not a tenancy continues to exist. Seeking an out-of-court solution may be sensible; but decisiveness is required when proceedings are actually started: Fareham BC v Miller [2013] EWCA Civ 159, [2014] HLR 22. 

The tenant mends his ways

In the very early days of the tenancy the tenant behaved in a seriously anti-social manner and the neighbours all complained. The local authority took a long time to react, but finally issued proceedings for possession, and the hearing took a long time to come on. Meanwhile the tenant had calmed down and mended his ways. He relied upon article 8, pointing to his continuing good behaviour since the issue of the proceedings. The judge may or may not admit fresh evidence arising since the start of the process: Pinnock paras 115-116. The decision of the judge as to proportionality overall is very much a value judgment on the evidence and unlikely to be susceptible to being overturned on appeal unless he went badly wrong on principle: Southend-on-Sea v Armour [2014] EWCA Civ 231, [2014] HLR 23.

No right to succession

The widow, who succeeded to the council tenancy on the death of her husband, has herself now died. Her son and his wife and child have lived there for many years. There is no right of succession. Circumstances which would justify resisting possession on grounds of article 8 are difficult to conceive. Parliament made the rule. Public policy requires consideration of the needs of those on the waiting list. Thurrock BC v West [2012] EWCA Civ 1435, [2013] HLR 5, [2013] 1 P and CR 12.

Squatters 

The squatters squatted on private property, made the squat their home, and had been there for quite some time. They did not damage the property, and indeed they were of some help to the local community. Facing an application for an order for possession they pleaded article 8. Such a plea is arguable in exceptional circumstances and the judge should not automatically reject it, though he will take a lot of persuading. In making the order he will give no more than 14 days, perhaps longer in an exceptional case  Malik v Fassenfelt [2013] EWCA Civ 798.

Extend or postpone the order

The judge may in his discretion extend or suspend the operation of the order for possession, but where the tenant does not have a secure tenancy 42 days must be the maximum, e.g. where there would be exceptional hardship, and often much less: Powell paras 57-64; Pinnock para 62. A refusal to suspend would be justified where the judge was not satisfied that there would be no recurrence of the offending behaviour: Friendship Care and Housing Association v Begum [2011] EWCA Civ 1807, [2013] HLR 11. Social housing should go to the most needy, eligible and qualified. The tenant or licensee must satisfy the judge that there will be no recurrence in the future: Birmingham City Council v Ashton [2012] EWCA Civ 1557, [2013] HLR 8.

Disability

The situation is different where the tenant or licensee is disabled: Equality Act 2010 ss 4, 15 and 35, and the Equality Act (Disability) Regulations 2010 SI 2128. The law applies to private as well as to public landlords; and the local authority often house those for whom they are responsible in private housing. As a matter of public policy particular consideration must be given to the disabled. Where there is a mere possibility of discrimination the landlord must prove that there has been no discrimination, that possession would be proportionate in pursuance of a legitimate aim, and that there is no possible alternative which would be less draconian or drastic for dealing with the problem. There is no presumption or assumption in favour of the landlord. Summary proceedings are most unlikely to be appropriate in a disputed disability case, as documents may need to be disclosed and experts’ reports obtained and cross-examination required. It will be rare in a disputed case that there is no prospect of success for the tenant and where possession is obviously proportionate, such that summary proceedings would be justified: Akerman-Livingstone v Aster Communities Ltd [2015] UKSC 15, paras 15-19, 31-36, 55-58, 59, 60. 

Not even a court order

The local authority housed the homeless family in temporary day to day B&B accommodation, under licence. The accommodation was rented by the local authority from the private sector. The local authority, having investigated the facts, decided that in fact the family was intentionally homeless. They therefore gave 28 days notice to terminate the licence, held a review on request, made a needs assessment, offered advice and assistance, but refused accommodation. Did they need a court order in order to evict the family? The Supreme Court in R(N) v Lewisham LBC [2014] UKSC 6, [2014] 3 WLR 1548, 5:2, Lord Neuberger and Lady Hale dissenting, held that a court order was not required. Seeking an order would cause delay and cost. Eviction without court order was in conformity with English domestic law. The needs of the unintentionally homeless had to be considered, taking possession on their behalf was a legitimate and proportionate aim. The decision of the local authority was open to judicial review. One wonders about the practicality of trying to evict without a court order. There could be trouble. The family may resist. A crowd may gather. The police may have to be called. The media will have a story. Application will quickly be made for judicial review, so everybody will end up in court anyway. If the family moves out quietly so much the better, but if the family resists or may resist then a court order would seem sensible. Even if the family do leave but find themselves on the streets, in practical terms the local authority will still find themselves obliged to find some sort of accommodation for them.

Alec Samuels is a barrister and formerly Reader in Law in the University of Southampton. He has also been very active in local government, retiring as leader of Southampton City Council in 2011. He can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it.. 

© Alec Samuels, 2015