Go West

Karl Anders looks at a recent Court of Appeal decision that confirms that an Article 8 defence to a possession claim will only succeed in a small number of cases. This decision will be met with much relief by social landlords.

Defences to possession proceedings based on Article 8 of the European Convention on Human Rights, which protects a person's "private and family life, his home and his correspondence" have become increasingly prevalent in recent years.

The Court of Appeal's decision in Thurrock Borough Council v West [2012] EWCA Civ 1435 is clear authority that the circumstances will have to be exceptional in order to sustain an Article 8 defence. This decision will be met with much relief by social landlords who will be able to use it to strike out or defeat defences put forward by tenants or occupiers that do not meet the necessary threshold.

In this case the occupier was the grandson of a social housing tenant, who wanted to remain in the property with his partner and young son following his grandmother's death. The grandparents' tenancy had automatically vested in the grandmother under the Housing Act 1985 on the grandfather's death, and on the grandmother's subsequent death the grandson had no right of succession. The only defence to the landlord's otherwise irrefutable claim for possession was the occupier's claim that an order for possession would be disproportionate and so an infringement of his Article 8 rights.

The occupier relied on the fact that the property was home to him and his family, he had paid rent, was a good 'tenant', was of limited financial means, and the family would need to be rehoused by the council if they were not able to remain in the property. In overturning the county court's decision to refuse the landlord possession, the Court of Appeal commented that the defence should have been struck out as not even reaching the threshold of a seriously arguable Article 8 defence.

The practical implications of this decision for social landlords are that they now have Court of Appeal support when presenting arguments that an Article 8 defence should be struck out. Landlords should be more willing to seek strike out as a cost effective way of dealing with clear cases at an early stage. There will, of course, be cases where the Article 8 defence is arguable, and here the landlord will need to ensure that its evidence demonstrates that its actions are proportionate in the circumstances.

Karl Anders is Head of Walker Morris' housing litigation team. He can be contacted on 0113 283 2631 or by This email address is being protected from spambots. You need JavaScript enabled to view it..