Repossession doesn't infringe human rights

Since the convention went domestic on 2 October 2000, challenges to a landlord's right to recover have come from a variety of sources: local authority introductory and registered social landlord assured shorthold tenants, people in temporary housing and a former joint tenant whose ex-partner had served notice to quit. All these challenges have failed.

The courts ruled that although article 8 – the right to respect for private and family life and the home – applied, possession was proportionate under article 8(2). More recently in July 2003, in the House of Lords case Harrow LBC v Qazi, the article was found to provide no protection, if none existed under domestic law. The claimant, Mr Qazi, claimed defence under the article after his former wife brought their joint tenancy to an end.

Introductory tenancies – and for RSL landlords, assured shorthold (starter) tenancies – are used either as a mechanism for assessing suitability for long-term tenancy or, in the case of the homeless, to permit a landlord to assess need. They also give an opportunity to grant short-term supported lets, with the intention of moving people into more permanent accommodation once they have achieved a level of independent living.

Donoghue v Poplar HARCA (2001) decided that the assured shorthold regime, with its mandatory ground for possession, is compatible with a claimant's rights under the convention. The court also held that the RSL, in the particular circumstances of that case, was exercising a public function.

This does not mean that an RSL operating in other areas, such as stock management or when carrying out its duties as an employer, will be treated as a functioning public body. Even local authorities operate in the private realm when acting as an employer.

Perhaps the discussion on whether or not an RSL can be treated as a public body has obscured the more general issue of the convention's impact on possession claims.

The Law Commission study Renting Homes was published on 5 November and, although it is not the commission's final report on the reform of tenancy law, it does contain conclusions on the way forward. A draft housing bill will follow, possibly next May, with the final commission report. The commission's interim conclusions are interesting in this context because there is a clear assertion that an RSL is not deemed to be a public authority for the purposes of the human rights legislation. It is unlikely that this assertion will be altered at final report stage.

It must be right for all landlords to be able to manage their stock and tenants without being hit by regular and costly legal challenges

Most social landlords adopt fair and transparent procedures when considering whether an individual should be granted a permanent tenancy or not. However, even if an RSL does not use fair procedure, subsequent possession proceedings would not necessarily be illegal. The Housing Corporation may criticise, but compliance with an internal review procedure is not necessary for repossession under the 1998 Housing Act: the court must order it if the notice is valid.

Since the Poplar HARCA decision, the courts have been asked whether assured shorthold tenants are entitled to seek a judicial review of their RSLs' repossession decisions. In such cases, the courts have pointed to these applications' excessive legalism, unnecessary if an association's appeal process has concluded against a tenant on reasonable grounds. It is a private law matter.

As Lord Scott put it in the Qazi case: "Article 8 had been given an effect that it was never intended to have and which it had never been given [under European law]".

But tenants, and those who advise them, continue to threaten and even issue applications for judicial review, seeking to delay possession applications while their case is made and invariably refused.

It must be right in a democratic society for all landlords, including local authorities and RSLs, to be able to manage their stock and tenants without being hit by regular and costly legal challenges. Significant cash is being wasted, both from public and private resources.

All those involved should take a step back and consider – in light of what is now a sizeable body of case law – whether there is any point in wasting more money on this fruitless endeavour.

Of course, Mr Qazi could take his case to the European Court. The housing bill, if enacted in accordance with the Law Commission interim conclusions, may present an entirely different picture in that it has concluded that a landlord in similar circumstances to Mr Qazi should only be able to recover possession if rehousing is available and it is reasonable to make an order for possession.