Article 8 Evictions – Human Rights?

by Mark Reynolds

15:17 PM, 13th April 2012
About 7 years ago

Article 8 Evictions – Human Rights?

Make Text Bigger
Article 8 Evictions – Human Rights?

Having read Mary Latham’s article about landlord’s not being able to evict due to human rights law, I have been giving some thought to the speculation. I have worked for the public sector for over 25 years and during that time I have been heavily involved in considering human rights in everything I do. Therefore, I would like to think that I have some experience of article 8 and the implications it has.

Article 8 Evictions – Abbreviations

  • ECHR – European Court On Human Rights
  • PRS – Private Rental sector
  • LA – Local Authority
  • RSL – Registered Social Landlord
  • HRA – Human Rights Act

In recent cases, for example Manchester v Pinnock 2010, one of the questions raised was the question of proportionality and this case was referred to in Hounslow v Powell 2011. One thing the reader has to remember is that the HRA is directed at Public Bodies and how their actions impact on the people they deal with. But what is a public body? Section 6 of the HRA explains all – the words “public authority” for the purposes of section 6 are defined in section 6(3) as including courts and tribunals, and “any person certain of whose functions are functions of a public nature”.

This is an extract from the act but if you want to read the whole document on what is or what is not a public authority, you can download a pdf here.

So where does this leave a private landlord?

My own opinion, and I stress my own opinion, is that it leaves you exactly where you were before these cases came to a conclusion and changes nothing.

Why?

Because you are a private landowner and not subject to the HRA. There is a case currently in the appeal courts but I am not aware what that case is or what the circumstances are. If you are aware then maybe you could shed some light on the circumstances if you are able to.

There are some questions we might want to consider that could well concern private landlords and letting agents

  • What if you are a RSL housing tenants on behalf of the local authority. Are you now carrying out a function of a public nature?
  • What if you are a letting agent that is solely or predominately housing tenants on behalf of the local authority? Are you now carrying out a function of a public nature?
  • What if you have a tenant on housing benefit and the LA stops paying their rent for whatever reason? Is there a case for the tenant to defend their eviction citing the LA is responsible for the rent and they have failed in their duty as a Public Authority?

My personal view is that the judges in the appeals mentioned have taken a realistic view on what has gone on and my interpretation of the decisions, particularly in the Pinnock case, are not directed at the private rental sector. Here is a direct lift from the Pinnock case

Paragraph 4:
On the other hand, we should emphasise at the outset that nothing in this judgment is intended to bear on cases where the person seeking the order for possession is a private landowner. We briefly explain why at para 50 below.

And paragraph 50:
We emphasise that this conclusion relates to possession proceedings brought by local authorities. As we pointed out at para 4 above, nothing which we say is intended to bear on cases where the person seeking the order for possession is a private landowner. Conflicting views have been expressed both domestically and in Strasbourg on that situation. In Harrow v Qazi [2004] 1 AC 983 the views of Lord Bingham and Lord Steyn, at paras 23 and 26, can be contrasted with the view of Lord Hope, at para 52. In Belchikova v Russia (App no 2408/06, 25 March 2010), the application was held to be inadmissible, but the EurCtHR (First Section) seems to have considered that article 8 was relevant, even when the person seeking possession was a private sector landowner. Presumably, this was on the basis that the court making the order was itself a public authority. But it is not clear whether the point was in contention. In the rather older admissibility decision of Di Palma v United Kingdom (App no 11949/86) [1986] ECHR 19, (1986) 10 EHRR 149, 155-156, the Commission seems to have taken a different view, but the point was only very briefly discussed. No doubt, in such cases article 1 of the First Protocol to the Convention will have a part to play, but it is preferable for this Court to express no view on the issue until it arises and has to be determined.

Yesterday, I was in conversation with a senior member of my local housing department who was well aware of the Pinnock case and it is also their view that this will in no way affect PRS. That is not to say another challenge may not come up later, but at the moment, as both a landlord and as a letting agent, I won’t be panicking just yet!



Comments

Mary Latham

16:20 PM, 13th April 2012
About 7 years ago

Mark the two last questions on your list are of concern I wonder if anyone knows the answers?

16:40 PM, 13th April 2012
About 7 years ago

The tenant signs a contract with the PRS landlord in which they agree to pay rent. They would be in breach of contract even if that rent is paid via a LA benefit.
A local authority has a wider stated duty to provide housing. A private landlord does not except within the terms of their contract with the tenant.

For public bodies I think the biggest worry is the fluffy nature of a ruling based upon proportionality.

Mark Reynolds

9:30 AM, 14th April 2012
About 7 years ago

Thanks Teena and you are right - the involvement of the LA should not impact on whether the landlord is carrying out a public body function, but I guess in time someone will latch onto this and take an appeal forward - watch this space I suppose

I would be interested to hear other views on the social housing landlord/agent question

Mary Latham

10:37 AM, 14th April 2012
About 7 years ago

Many local authoritites have transfered their stock to RSL's now and I can see that there is potential to say that they are now carry out a public function.  Many of these RSL's are taking property from landlords under long leases to increase the stock.  These landlords might be vulnerable if the RSL is.

Ben Reeve-Lewis

9:00 AM, 15th April 2012
About 7 years ago

I've only just seen this article. Well done Mark for digging out the relevant passage. I agree, landlords will never be in the frame for an Article 8 defenece themsleves but as the lords state in paragraph 50 Courts are performing a public function and that is where my understanding of the danger lies.

To my mind it's only a theoretical danger as I have said all along because as you usefully point put judges take a realistic view. This is why I think this issue is, as Mary wonderfully referred to it, a 'Storm in a rent book'.

I recall a couple of years back a similar thing happ[ening in homelessness law which caused outrage and much discussion. AB v. Leicester, where AB refused to provide informaiton on her immigration status, so the homeless unit told her to sling her hook. She challenged and the judge held that it is for the council to prove or disprove a homeless appplication not the appplicant and in the absence of such information they had to find for the applicant.

The implications being that all anyone had to do was turn up and say they were homeless and refuse to answer any further questions. This got kicked up the courts system but caught to naught. A realistic view was adopted as you can imagine. These little flurries come up from time to time.

On the matter of RSLs, since Weaver v. London and Quadrant Housing Association, RSLs (or PRPs as they are called these days but we all still stick to the old name) are hybrid public bodies for the purposes of their housing management functions.

When Weaver came in after a long and tortuous 2 year argument the main thing many were concerned with was the ground 8 issue, mandatory possession where there are 2 months arrrears. No defence to proceedings could mean, as with Pinnock, an Article 8 defence. Apart from introductory tenancies as was the case in Pinnock there are no mandatory grounds for eviction avaiable to councils. Housing associations have a different set of eviction grounds.

In my borough we take on as many PSL properties as we can get our hands on and as far as I am aware all the  agreements issued show the council as the landlord.

The main concern for us is we use most of the PSLs to temporarily house homeless applicants and so far, by virtue of Mohammed v. Manek & Kensington and Chelsea security of tenure for people under homeless investigation can only be licencees. If they were tenants and you decided 2 weeks later that there werent actually homeless, or were intentionally homeless then you would have to go through the whole eviction rigmarol to get them out. Taking up crucial accommmodation when you need it for others.

The spectre of Roma Denousse v. Newham nearly put the kibosh on this where the argument was if the accommodation is self contained it should be a tenancy. A close frined of mine was the manager in Newham at the centre of this one, she told me it petered out but only because Denousse dropped out of the picture so proceedings faltered (I joke with her that I think she had Denousse killed)

So these kind of threats are around all the time

 


Leave Comments

Please Log-In OR Become a member to reply to comments or subscribe to new comment notifications.

Forgotten your password?

OR

BECOME A MEMBER

Shelter’s Head of Research misled public on TV

The Landlords Union

Become a Member, it's FREE

Our mission is to facilitate the sharing of best practice amongst UK landlords, tenants and letting agents

Learn More