Right to Housing

Right to Housing

Article 8 of the European Convention on Human Rights (ECHR) protects the right to respect for a person’s home but at first the courts were reluctant even to accept that a possession order interfered with the right at all so as to require justification. This was acknowledged by the Court of Appeal in R (McLellan) v Bracknell Forest BC, and after a long series of exchanges between the domestic courts and Strasbourg, it was finally accepted that an occupier with no other defence could still defend a possession claim by a public authority if the decision to evict was disproportionate.

Doughty Street barristers have been active in exploring the boundaries of this rule and in particular whether it applies to private landlords (for example in Malik v Fassenfelt or House Owners v Berry, currently before the Court of Appeal).

Up until recently, the European Court of Human Rights has seemed to offer little to the homeless; the Strasbourg Court frequently says that there is no right to a home. However, the case of Ali v UK now confirms important procedural rights. For the first time the ECHR accepted that a homelessness application involved a civil right so as to require determination by an independent and impartial tribunal. The current question is how far courts can be persuaded to look more closely at decisions and to move away from a blanket ‘irrationality’ test. This issue is directly before the Supreme Court in Poshteh v RBKC (permission pending) and cases such as Nzolameso v Westminster City Council show that the courts are ready to scrutinise how far decision makers actually have addressed fundamental questions such as the best interests of a child.

For more information about Doughty Street’s work in this area please see our housing law team page.