Rent arrears management practices in the housing association sector

is a seriously arguable point on the compatibility
of a court order for possession with Article 8
of the European Convention on Human Rights,
as incorporated into English law by the Human
Rights Act 1998 . 20 Gateway (b) arises where the
occupier wishes to challenge the decision of a
public authority to recover possession on the basis
that it is an improper exercise of the public body’s
powers . 21 Article 8 of the ECHR concerns the right
to respect for private and family life:
1. Everyone has the right to respect for his private
and family life, his home and his correspondence .
2. There shall be no interference by a public
authority with the exercise of this right except
such as is in accordance with the law and
is necessary in a democratic society in the
interests of national security, public safety or
the economic well-being of the country, for the
prevention of disorder or crime, for the protection
of health or morals, or for the protection of the
rights and freedoms of others .
20 S 3, Human Rights Act 1998 .
16
Gateway (a)
Gateway (a) provides the foundation for a general
attack on Ground 8 in certain cases on the basis
that it is a disproportionate interference with the
right of respect for the home because, being a
mandatory ground, the court has no discretion as
to whether or not to make an order for possession .
Although this is a general challenge to Ground 8,
it may be particularly relevant where one reason
for proceeding on Ground 8 takes account of
other factors such as the behaviour of the tenant .
In Cosic v Croatia, 22 the European Court of Human
Rights made the following point about mandatory
possession proceedings in the context of a state
claim to possession of property:
• In this connection the Court reiterates that the
loss of one’s home is a most extreme form of
interference with the right to respect for the
home . Any person at risk of an interference of
this magnitude should in principle be able to
have the proportionality and reasonableness
of the measure determined by an independent
tribunal in the light of the relevant principles
21 Kay v Lambeth LBC [2006] 2 AC 465, [110] (Lord Hope); as expanded upon in Doherty v Birmingham CC [2008] UKHL 57 .
22 Application no . 28261/06, ECHR, 15 .01 .09 .
23 At para 22, referring to McCann v UK [2008] BLGR 474 .