Rent arrears management practices in the housing association sector

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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 .
under Article 8 of the Convention, notwithstanding that, under domestic law, his or her right of occupation has come to an end . 23 This echoes the finding of the ECHR in McCann v UK concerning the proportionality of the landlord’s common law right to possession where one of two joint tenants has given a notice to quit .24 The House of Lords declined to accept the principle in McCann .25 Even so, a number of claims for possession on the basis of Ground 8 have been referred to the High Court for a determination as to the compatibility of that Ground with Article 8 . 26 Gateway (b) Gateway (b) arises only where an HA is a “public authority” or, in exercising its right to possession, is exercising a “function of a public nature” . 27 In R 24 McCann v UK [2008] BLGR 474 . 25 See Doherty v Birmingham CC [2008] UKHL 58 . (Weaver) v London & Quadrant Housing Trust, 28 the Divisional Court made a declaration that, in principle, HAs are subject to the Human Rights Act 1998 and judicial review in respect of certain of their functions relating to allocation and management of their housing stock . 29 This decision was upheld by the Court of Appeal and is, at the time of writing, on appeal to the Supreme Court . 30 If HAs are exercising public functions in seeking possession on the basis of Ground 8, tenants may draw on traditional public law defences, including irrationality (or Wednesbury unreasonableness) . There is also the possibility that tenants may draw on the development by the courts of a proportionality defence to summary proceedings for possession . 31 There is a developing body of case law on this issue, which, broadly, has established 26 Personal correspondence with Professor Ian Loveland and Justin Bates of Counsel . The County Court does not have power to make such a determination: s 4(5), HRA . See also Dublin CC v Gallagher [2008] IEHC 354, in which the Irish High Court found that summary possession proceedings were incompatible with Article 8 . 27 S 6(2)(b), HRA . 28 [2008] EWHC 1377 (Admin) . 29 Id at [52] . 30 [2009] EWCA Civ 587 - http://www .bailii .org/ew/cases/EWCA/Civ/2009/587 .html 31 Compare, Hillingdon LBC v Collins [2008] EWHC 3016 (Admin) and Dixon v Wandsworth LBC (No 2) [2009] EWHC 27 (Admin) . 32 See Doran v Liverpool CC [2009] EWCA Civ 146; McGlynn v Welwyn Hatfield DC [2009] EWCA Civ 285; Defence Estates v JL [2009] EWHC 1049 (Admin); Central Bedfordshire Council v Taylor [2009] EWCA Civ 613; Stokes v LB Brent [2009] EWHC 1426 (QB Rent arrears management practices in the housing association sector 17
Page 1 and 2: Rent arrears management practices i
Page 3 and 4: Contents Executive summary . . . .
Page 5 and 6: Executive summary Introduction This
Page 7 and 8: Key underlying factors were said to
Page 9 and 10: could, in part, reflect the growing
Page 11 and 12: overpayments and suspensions were p
Page 13 and 14: Chapter 1 Introduction 1.1 Backgrou
Page 15 and 16: arrears management and related aspe
Page 17: “… there may occasionally be ci
Page 21 and 22: y HAs . 37 The Circular informed as
Page 23 and 24: Pre-action protocol for possession
Page 25 and 26: The purpose of these interviews was
Page 27 and 28: Table 1.1 - Case Study HAs Organisa
Page 29 and 30: Chapter 2 Rent arrears management p
Page 31 and 32: Pawson et al’s study found that 9
Page 33 and 34: 2.3 Rent arrears management practic
Page 35 and 36: this with any certainty . 69 Howeve
Page 37 and 38: authority can also lead to a lack o
Page 39 and 40: 2.5 The use of Ground 8 Although th
Page 41 and 42: In the Hunter et al study, 97 which
Page 43 and 44: some comment on the effect of the P
Page 45 and 46: • Ground 8 provided certainty to
Page 47 and 48: There was a difference of opinion a
Page 49 and 50: 3.3 The use of Ground 8 Whereas ans
Page 51 and 52: do so early enough, or at all . Cla
Page 53 and 54: Chapter 4 Rent collection and arrea
Page 55 and 56: 4.3 Housing Benefit service perform
Page 57 and 58: Table 4.3 - Housing association evi
Page 59 and 60: As shown in Figure 4 .1, CORE data
Page 61 and 62: were collected for landlords with l
Page 63 and 64: Most associations report initiating
Page 65 and 66: 5.2 Organisation of rent arrears ma
Page 67 and 68: Table 5.2 - Primary structure of ar
Page 69 and 70:
Table 5.3 - Recent changes in organ
Page 71 and 72:
Table 5.6 - Staff training provisio
Page 73 and 74:
Within the transfer landlord cohort
Page 75 and 76:
• Where arrears were accrued befo
Page 77 and 78:
Table 5.9 - Estimated percentage of
Page 79 and 80:
elatively high response rate achiev
Page 81 and 82:
The survey sought to collect statis
Page 83 and 84:
Ground 8 actions typically accounte
Page 85 and 86:
How is the scale of Ground 8 use ch
Page 87 and 88:
already routinely exercising the ac
Page 89 and 90:
Chapter 6 Case study evidence Chapt
Page 91 and 92:
Annex 2 outlines our method, includ
Page 93 and 94:
a couple of weeks to three months)
Page 95 and 96:
to officers and policies . Officers
Page 97 and 98:
RM put it, “caused uproar from te
Page 99 and 100:
preferred form of the organisation
Page 101 and 102:
tenant contacts are now recorded on
Page 103 and 104:
as a result, would make an order un
Page 105 and 106:
use - in these cases, it is viewed
Page 107 and 108:
g) The tenant perspective In each c
Page 109 and 110:
Ground 8 was generally to scrutinis
Page 111 and 112:
Ground 8 was said to be used as a
Page 113 and 114:
The key stakeholders regarded the P
Page 115 and 116:
ule it would not be used where HB w
Page 117 and 118:
Table A1.1 - Evicted households by
Page 119 and 120:
uncontactable as a result) . Where
Page 121 and 122:
Just under half of all cases in the
Page 123 and 124:
Annex 2 Case study HA selection Our
Page 125 and 126:
Annex 3 Profile of case study housi
Page 127 and 128:
However, after a review across its
Page 129 and 130:
as developing joint working with th
Page 131 and 132:
Annex 4 Case study topic guides HA
Page 133 and 134:
19. What has been your recent exper
Page 135 and 136:
12. How are your tenants helped wit
Page 137 and 138:
9. If RSLs rely on Ground 8, what i
Page 139 and 140:
4 Tenant employment circumstances (
Page 141 and 142:
10 Value (£) of arrears at defined
Page 143 and 144:
Our offices Maple House 149 Tottenh
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Rent arrears management practices in the housing association sector

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