Judicial review and human rights defences for Gypsies and Travellers in possession cases

Travellers on permanent local authority sites have basic protection from eviction under Part I of the Caravan Sites Act 1968. They must be given notice to terminate the agreement and a court order must be obtained before eviction can take place. The public authority site owner does not need to prove a ground for possession. However an occupier may be able to:

• raise a defence on public law grounds in the county court, or

• when it is not open to the county court to consider such a defence, the occupier could ask the court to adjourn proceedings to enable an application for judicial review or for a declaration of incompatibility to be made.[1]

Wherever appropriate, it is advisable to refer the occupier to a solicitor as soon as possible before the date of the court hearing. The Travellers Advice Team at the Community Law Partnership specialises in assistance to Gypsies and Travellers in housing matters. 

Local authorities are public authorities. Private registered providers of social housing (PRPSHs) are not always treated as public authorities, however where the nature of their functions are such that their actions are of a public nature, their acts are open to a challenge on public law grounds. The Court of Appeal held that in most cases this will include the act of terminating a tenancy.[2]

The following conventional judicial review grounds can be used as a basis for a public law defence against a decision to seek possession. These can include when a public authority:

• fails to follow its own policy

• 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 body

• goes 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 so unreasonable that no reasonable authority could have come to it (also known as a 'Wednesbury unreasonable' decision).

Seriously arguable challenge

A challenge made on conventional judicial review grounds must be seriously arguable in order for a defence succeed. In one case the Court of Appeal held that the failure of a local authority to follow its own policy on vulnerable people was such an exceptional case and it was unlawful when it took possession 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.[3] Again, in a case concerning a starter (assured shorthold) tenancy granted by a PRPSH, the possession claim was dismissed for errors in procedure when the High Court judge found, among other things, that the PRPSH had failed to follow its own policy on dealing with rent arrears.[4]

Where a challenge is made on conventional judicial review grounds, the tenant is challenging the decision to bring proceedings or to continue with possession proceedings. It is important to note that this defence is distinct from the 'reasonableness' test the court must address when considering a claim for possession on discretionary grounds, where the court is required to decide what is a reasonable outcome in all the circumstances, including the tenant's personal circumstances. For more information see the page Judicial review.

Defences to possession proceedings have been raised citing:

• a breach of article 8 of the European Convention on Human Rights (ECHR)

• a breach of articles 6 of the ECHR

• that the domestic law that allows possession to be granted is incompatible with the ECHR.

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.[5] While in order to have the benefit of the right to respect for the home an individual is 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.[6] 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 (ECHR) noted that an interference with Article 8 rights will be considered necessary if it is proportionate to the legitimate aim pursued. 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.[7]

Proportionality test

The UK 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'.[8] The proportionality test concerns the need to balance the legitimate needs of society with that of the individual. In possession cases, the the Supreme Court held that the legitimate aims which a landlord may rely upon are:[9]

• 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.

It is important to note that the proportionality defence is distinct from the 'reasonableness' test the court must address when considering a claim for possession on discretionary grounds. 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, as such the tenant will need to set out why there are compelling factors which render it disproportionate for the court to order possession.[10]

Vulnerable occupiers

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.[11]

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 has held that the internal review procedure under the introductory tenancy[12] and demoted tenancy[13] regimes are both compatible with article 6.

A declaration of incompatibility can only be made in the High Court.[14] Where the domestic law that allows possession to be granted is incompatible with article 8, if the county court 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 the High Court to consider the issue of compatibility.

The Supreme Court did not consider that section 89 of the Housing Act 1980, which restricts the power of the courts to defer possession for more than six weeks when the landlord does not need to prove a ground for possession or the claim is proven on mandatory grounds, was incompatible with article 8.[15] 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.[16]

A Gypsy or Traveller occupying a local authority site can raise a 'human rights' defence in the county court.[17] Currently it is uncertain whether occupiers of PRPSH sites can also raise such a defence, and if the county court states it does not have the power to hear a defence, it should be asked to adjourn the claim for possession pending an application for judicial review.

It remains unclear whether any tenant or occupier can raise a public law defence on conventional judicial review grounds in the county court. If a county court remedy is available then judicial review will not be applicable. If the county court cannot consider such a defence then the court should be asked to adjourn proceedings pending a judicial review in the High Court. A declaration of incompatibility can only be made in the High Court.