Public law and human rights defences

Public law governs the conduct and processes of public authorities. It is sometimes called administrative law. Its purpose is to ensure fair decision-making and provide opportunities to challenge public authority decisions.

Landlord claimants in possession proceedings must follow public law principles when exercising a public function.

Public law could be raised as a defence to a possession claim brought by a local council because it is a public authority exercising a public function.

What is a public authority?

Local authority landlords are public authorities.

Housing associations can be treated as public authorities when they exercise a public function.[1]

Housing association public functions can be challenged on public law grounds. A public function can include terminating a tenancy.[2]

Whether a housing association is exercising a public function can depend on factors such as whether the:[3]

• funds to purchase the property were raised on the open market or a public subsidy

• housing falls in the definition of social housing in the Housing and Regeneration Act 2008

• housing association is helping the local authority fulful its statutory duties

• rents are subject to the same statutory regulations as social homes

Public law defences are most useful to tenants with limited options to defend a possession claim. For example, assured shorthold tenants where the landlord has issued a claim based on a valid section 21 notice.

When the court has discretion

Public law defences are not usually used where the court has discretion about making a possession order. For example, where a claim against a secure or assured tenant is issued on a discretionary ground. This is because the court can decide if it is reasonable to make a possession order.

The tenant can highlight the landlord's failings for the court to consider when it decides if it is reasonable to order possession. The court's discretion on making a possession order on a discretionary ground is much broader than when a public law defence is advanced.

When the court lacks discretion

Public law defences are available in cases where the court lacks discretion to consider if it is reasonable to order possession.

Tenants who might have a defence on public law grounds include:

• assured tenants of housing associations facing a claim on a mandatory ground

• assured shorthold tenants of housing associations

• secure local authority tenants facing a claim on the mandatory antisocial behaviour ground

• non-secure local authority tenants

• demoted local authority tenants

• introductory tenants

• family intervention tenants

• tenants of a fully mutual housing cooperative

• service occupiers of a public authority

People with no security of tenure

A public law defence can be raised by people who have lost security of tenure, or who never had it in the first place.

This could apply to a:

• relative, spouse or partner who lives in the property but does not have a right to succeed after the secure tenant dies[4]

• trespasser who has established a home on the land of others or public land[5]

• 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[6]

Judicial review grounds set out what the Administrative Division of the High Court expects from public authorities. They are the basis for public law defences against a decision of a public authority to seek possession.

Judicial review grounds can include when a public authority:

• fails to follow its policy

• ignores relevant factors or takes into account irrelevant factors

• fails to follow statute or case law

• fails to make findings of fact

• fails to give adequate reasons for its decision

• acts outside or above its legal authority

• has fettered its discretion or operates a blanket policy

• 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

Public law can also be used to challenge a perverse or irrational decision. That means the decision is so unreasonable that no reasonable authority could have made it. This is sometimes called Wednesbury unreasonableness.[7]

Breach of statutory duties

Judicial review grounds can apply where a public authority is in breach of its statutory duties, including under:[8]

• the public sector equality duty

• section 11 of the Children Act 2004 to have regard to the need to safeguard and promote the welfare of children

Public authority decision to start possession action

The tenant can use judicial review grounds to challenge the landlord's decision to bring or continue possession proceedings.

Judicial review grounds do not allow the court to consider if it is reasonable to make a possession order.

A breach of human rights can be raised by a tenant in a defence to possession proceedings.

Relevant articles in the European Convention of Human Rights include:

• Article 6: Right to a fair trial

• Article 8: Right to respect for private life, family, home and correspondence

• Article 14: Right to protection from discrimination

• Protocol 1, Article 1: Right to protection of property

A tenant could have a defence to possession if the domestic law that allows possession to be granted is incompatible with the ECHR.

A public authority's failure to act in accordance with the tenant's convention rights can also be raised as part of a public law defence or claim for judicial review.

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

Effect of Brexit on the European Convention on Human Rights

The Human Rights Act 1998 incorporates most of the rights first contained in the European Convention on Human Rights (ECHR).

The Human Rights Act and the ECHR are unaffected by the UK's exit from the European Union.

The County Court can consider public law or human rights defences for some claims.[9]

When the County Court cannot consider a public law defence, the tenant can ask the court to adjourn the proceedings to apply for judicial review.[10]

The Administrative Court judicial review guide contains details on bringing a judicial review case to the Administrative Division of the High Court.

Declaration of incompatibility

An application for a declaration of incompatibility can only be made to the High Court.

Stay or suspension of a warrant

The tenant can apply to the County Court to stay execution of a warrant pending the outcome of an application for judicial review to the High Court.[11]

In exceptional circumstances, an Article 8 defence can be raised in the County Court at the enforcement stage. For example, where there is a fundamental change in the occupier's circumstances such as a diagnosis of an incurable illness or a change in the relevant law after the making of the possession order but before eviction.[12]