Wednesday, 26 November 2014

Human rights ruling halts eviction

Councils could face increased pressure not to evict tenants who go into arrears after a Supreme Court ruling.

Hounslow Council tried to evict Rebecca Powell, 23, because she owed more than £3,500 in arrears. The council had housed her in temporary accommodation after she became homeless in April 2007.

She was entitled to £15,000 in housing benefit but had not applied for it properly.

The council began eviction procedures, but stopped when Ms Powell appealed under the Human Rights Act.

The Supreme Court ruled last week that under the European Convention on Human Rights it would be wrong to evict Ms Powell as it would be a breach of ‘respect for a person’s home’.

The judge said the council had not considered whether it was ‘proportionate’ to evict her.

Last week’s hearing follows on from the Pinnock case last year. This ruled courts should test the proportionality of landlord’s decision to carry out mandatory possession proceedings, taking into account a tenant’s personal circumstances.

A spokesperson for Hounslow Council said: ‘This is an evolving area of law. Hounslow argued this case and its position was vindicated as evidenced by the results in both the county court and Court of Appeal.

‘Judgement in the case of Pinnock was handed down on 3 November 2010 and set binding precedent. Ms Powell was heard on 23 November 2010 and on the advice of counsel, alternative accommodation was provided to Ms Powell to limit costs and avoid the necessity of a rehearing in the county court.

‘Hounslow Council and no doubt other councils will be concerned about the implications of this case in terms of the management and allocation of its housing resources.’

Ms Powell has agreed to clear her debt at a rate of £5 per week, or more if possible.

Readers' comments (43)

  • Chris Webb

    Yes - it would have been proportionate to have offered assistance rather than legal action - thus avoiding the debt in the first place and saving the local tax payer £100,000s in legal fees. The media are trying to blame the legal costs on the tenant for daring to stand up for her rights - but surely had she been advised, helped, or genrally assisted earlier on this whole sorry affair could have been averted.

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  • Outside Housing

    European Convention on Human Rights says - "breach of ‘respect for a person’s home"
    Judge says - "proportionality"
    I say - "fairness". If a person can't be evicted for owing a lot of money and in this case probably wouldn't be even if they defaulted on the £5 per week, how fair is that on the homeless applicants in unsatisfactory accommodation waiting for a social housing property?

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  • Sarah Chapman

    PSR, you have no idea whether the tenant had received any advice or assistance from the council before they headed for the courts. In fact, the pre-court protocols insist that landlords try every avenue to assist their tenants to pay their rent and deal with their arrears before taking action to evict them. Equally, since this tenant undoubtedly had legal representation to help her in her fight with the council, I can't understand why they apparently did not also assist her to claim HB "properly". I don't blame her for fighting for her home - but she maybe should have put more effort into dealing with her arrears before it got this far.

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  • She was entitled to HB but had declined to claim hence accummulating the arrears.

    Is it the case the local authority went down the adverserial route of seeking possession on the basis that they thought they had such a good case they would recover their costs.

    Cue the claimant, armed with a legal aid certificate and lawyers who believed she had a case to argue.

    That's how you get to £200k legal costs, as reported in the Daily Mail.

    Conclusion? Surely, there was a sensible argument to be made when the debt was at £3500, and a recognition that the claimant was entitled to legal aid, that an orderly withdrawal was the best course of action.

    Not a chance ... when both sides are armed by taxpayers' money.

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  • Chris Webb

    Sarah - simple logic - if they had discovered the failure to properly obtain HB there would have been no case to take to court.

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  • Sarah Chapman

    Its not simple at all. What would you have the council do? say, "oh she won't claim HB and she won't pay the rent herself so lets just allow her to live there rent free"? I don't know if you understand this, but the council cannot claim HB on a tenant's behalf. The tenant HAS to do this for themself. I don't know the full circumstances of this case and I don't trust the Daily Mail to be anything other than anti-tenant, but it does sound to me as if she did what many tenants do - fail to do anything about mounting arrears until it gets to court and then wait for the court to impose an agreement on them. £3500 at £5 per week means she will be paying this off for the next 13 years.

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  • Chris Webb

    Not at all, but I would expect any creditor to check with the debtor about the cicumstances of the debt, simply as good recovery practice. Where the creditor is a local authority landlord it seems sensible, if only from the required sustainment approach, to check, for instance, that all claimable benefit is being paid. In the event that it is discovered that a claim for benefit was turned down on a technicality, and that a clear entitlement would otherwise exist, it seems a little churlish to take the tenant to court.

    Yes the tenant has a responsibility, but so does the local authority. Where the latter has failed then the former's failure is where the proportionate ruling arises. Do you not see that the real original error is the lack of advice in the completion of the claim, or the failure to questiin the error.

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  • So the rules meant that the council had a responsibility to spend £200k to recover that £3,500.

    Only in local government.

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  • . . . remember "North British Housing Association Ltd v Matthews (and three other cases) [2004] EWCA Civ 1736"

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  • Chris Webb

    I remember the Alamo - how about a brief outline Sian?

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  • Bet there won't be any problems with HB not being claimed once the universal benefits scheme kicks in and HB is paid directly to the individual.

    I can't see any problem with this case.

    PSR, I think you're being deliberately obtuse in an attempt to simplify your argument (never!). Let's not pretend that this is a simple case of a lady taking a tenancy, not realising she had to pay rent and then only being told there was an issue the day the bailiff arrived.

    Most courts won't even hear a case if the landlord hasn't carried out all other obligations first and anyone that has tried for an eviction on the grounds of arrears know who frustrating the process can be despite in some cases repeat failures to to stick to payment plans.

    the fact that this went through two court hearings successfully before the European courts must mean that they were satisfied that the landlord had fulfilled their obligations and that the tenant had not made sufficient attempts to resolve her financial issues.

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  • This lady was owed £15,000 in housing benefit... Whether she claimed for it or not, that was her money. This money was there, to cover her debt... All the landlord had to do was help this lady to claim properly and they would have saved the taxpayers 100ks of money...
    It is clear this lady was not trying to take any advantage of public money one way or another.
    It might have been her duty to claim housing benefit, but it was the landlord duty to make her aware of it and help her in doing so.
    I wonder how many social tenants are being evicted by our social landlords by wasting such large sum of public money when in fact the tenants evicted are owed money rather than being in debt.

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  • There are many reasons why a social resident might not be able to resolve her financial issues, it does not automatically mean they can be evicted without violating their human rights. I would have thought any responsible social landlords would know this, whatever their lawyers advice.

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  • Chris Webb

    Bonola - I'm not being obtuse. Re-read the article.

    The woman had claimed HB, but the claim failed. As it tuens out she was entitled to 5 times her debt in backdated benefit. That indicates that she was paying partial rent at least, and indeed was paying far more rent than the State says she could be expected to afford without becoming destitute. Thus your proposition that she neglected her rent until the bailffs turned up is illogical against the facts given. As to the primacy of the UK courts, I think it just shows how the tendency to put property rights before human rights is a historical position of the British legal system. Thankfully there is a superior court to whom we could appeal to, until Clark removed the right to all but the richest.

    Sorry Bonola, but your rewritting of the case is not acceptable on this occassion.

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  • If trying to get the tenant to claim the unpaid HB wasn't the very first thing that the landlord tried to do then they are guilty of stupidity but not negligence. I'd be gobsmacked if this wasn't their approach from the start.

    As Kass mentions, the money was there and waiting, it was "her money". Given the simplicity of Kass' argument, who fault is it that she failed to collect it?

    Unfortunately landlords can't claim on behalf of a tenant or force them to do it. We can however complete a form on their behalf if they simply ask or allow it.

    this is a frustrating case all round and has resulted in a needless outcome. I find it strange that the lady failed to claim HB but managed to mount a legal case once eviction was on the cards.

    At what stage do individuals become responsible for their own actions? Or is the state perpetually responsible?

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  • I have personally known at least five or six people who were due housing benefit and did not claim them.
    None of them was stupid. The were deeply depressed, and because of that they did not even go to their doctors for their depression...
    Why would anyone want a person i nthese conditions who are not even able to look after themselves evicted is beyond me?
    It is clear that the landlord did not respect the human rights in this case.

    Each case is individual, and is judged on its own merit.

    As i said before there well may be many social tenants who have been evicted but did not have either the knowledge or the energy or the help to take their cases to the European court. this innocent woman was lucky to have or get help to have done so. But How many don't?

    This lady would have been evicted is she lost - but I bet no director or housing manager gets sacked for this outcome. These housing departments have nothing to lose but public money.

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  • So if she is entitled, or was, to £15,000, surely she would be able to get at least some of that backdated in a case with HB. Yet she's paying it back at £5 per week? If she gets a backdate I'm sure she'll pay it all off, right, right?

    I loathe the human rights act. Probably the worst thing Labour ever did in power. I get it's good intentions, but the road to hell is paved with them, and they're backed by the human rights act and paid for by the poor sods that work. This has been one of the most abused pieces of legislation in recent memory.

    Without knowing her reasons for 'not claiming' the HB it's difficult to judge. She could have had medical issues, in which case the council should have been helping her sort the HB out (as per the pre-action protocol) or she could have 'not been bothered' and not bothered contacting the council or replying to them until they were going to take away her home.

    Either way, it's given another nice expensive out for tenants to avoid eviction. If a repairs dispute fails, claim a human rights breach!

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  • I provide housing support for tenants, This would of taken an hour to sort out with HB.

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  • Alpha One..... you are spot on, and for what it's worth I completely agree with your comments on Europe, although I really am a Eurosceptic and make no apologies for it!

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  • Going back to an earlier point....Well done SarahC for seeing the wood for the trees here and bringing some common sense to this debate.... We hear so much about Human Rights and nothing at all about people's responsibilities. The problem with this country is that there is an expectation that everything is done for you, and that the onus is always on someone else to sort it.

    Working in a large RSL income team, we have numerous arrears cases where we support, guide, signpost, translate, even take people to HB office if we have to.... but the tenant HAS to take some responsibility for getting things done!

    Where would we be if we allowed people to live rent free, because they didn't make a claim for HB or decide to pay any rent? The liberal-minded ones among us would say 'ah bless... ' and promptly go bust when nobody paid up.... or the experienced, pragmatic housing workers would say 'we've done absolutely everything we can' and leave it to the courts to make the decision on whether to end the tenancy.... the Judges make the decisions here and as RSL's we have to prove we have done everything we can and should have done to assist (Pre Court Protocols are the minimum). If we take a case to court and get possession is it the last resort, and I know beyond doubt we've done our absolute best to sustain that tenancy. I'll get off my soapbox now.... back to collecting those arrears

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  • Mike Batt

    'Narra | 01/03/2011 9:27 am:So if she is entitled, or was, to £15,000, surely she would be able to get at least some of that backdated in a case with HB.'

    You can only have a HB application 'backdated' 6 months. She may be able to request revision of a decision...

    Remember this woman is not 'owed' the HB. It has to be applied for.

    The fact she was in a Council property and the Council also administer HB could show a lack of joined up thinking here but we've not really got the whole story..

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  • "Rachael Wells | 01/03/2011 9:36 am

    I provide housing support for tenants, This would of taken an hour to sort out with HB."

    Have some of the posters claiming they have hard time sorting out arrears here learnt anything for what Rachael Wells has said?

    No, nothing whatsoever. Instead they complain about Brussels and human rights... This is the landlords mentality tenants are faced with.

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  • I know a gentleman who became ill with depression and had to fight through a tribunal with the council over backdating a HB claim, which he won. He was supported by a specialist advisor employed by his landlord. At the same time he was having to push claims for support from the Department of Work and Pensions (DWP) for ESA and DLA to tribunal. He won two tribunals and the third was abandoned by DWP. someone came to their senses. However, he was made more ill than he needed to be by the process.

    It is not always a straight forward or easy process for the claimant. There is still, for many people, a stigma around having to claim benefits.

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  • Mike Batt

    'Garry Tinsley | 01/03/2011 10:37 am: It is not always a straight forward or easy process for the claimant. There is still, for many people, a stigma around having to claim benefits.'

    It normally is a straightforward process. However the minority that do have problems always have a right of appeal...

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  • Melvin - I am aware of the backdated period. Given the arrears and the (assuming) the rent charge for an average council property (lets not debate what an average is), a backdate would have easily cleared a majority of that debt. I didn't say she was 'owed' I said 'entitled'. If she'd sorted it out ofc. I agree council housing and HB do not have very good joined up thinking.

    Alpha - Do you have a link to details on the case? I'd be interested to read and can't find a copy of the ruling online yet it seems. (Although searching on a phone is a pain).

    Kass - Rachell Wells may be right, although it still requires the tenant to have some input into the situation. If Alpha is right on the detail, and she had HB stopped (say for lack of providing info) and she couldn't be bothered to do anything about it, that is not the councils fault. Tenants have some responsibilty to sort out their HB. You speak of 'landlords mentality' when it is clear the heart of the issue (if Alpha's info is correct) lies at the 'tenants mentality' that the council and HB should sort everything out for them (which is not possible as the tenant needs to have some input and effort into sorting out HB claims).

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  • Nevermind Alpha - Found it.

    As I thought, failure to provide info was the start of it all! Such a simple and easily remedied issue. Alas!

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  • Mr Reasonable

    So the poor old tenant was unable to apply for Housing Benefit, yet she was more than capable of appealing to the Supreme Court under the Human Rights Act.

    Surely one of the highly paid advisors who assited her in getting to this stage could have just filled out an HB form for her? Or wouldn't they earn as much fees that way?

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  • Chris Webb

    Alpha - thanks for reading up on the case and confirming the detail.

    In this case it seems correct that Art8 could be used to overule Gnd8, otherwise justice would not have been done. My position is that Human Rights must be maintained, but putting that to one side and hearing what you say

    If EHRC is to be over-ruled then there must be a mechanism to prevent injustice such as in this case an Incompetent Council eviciting an incompetent tenant. Without such protection of the individual against the rogue or error-adverse public servent any of us could find the most outrageous action against us being upheld in court.

    Great care is needed before the beating of the GB drum drowns out protection that we all need.

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  • Chris Webb

    I may be wrong Kass, but I don't think that the sector workers are disproportionately opinioned to the general population.

    I base this on the susceptability to mass propaganda, and particularly that the media barons appear to not want general rights to exists. Then there is of course the lack of realisation that lobbying to end rights for the 'underserving' ends them for the rest of us too.

    Sadly, by the time the hyped up and those incapable of being holistic catch on to what they have allowed they are normally the ones hanging from gibbets.

    It is unfunny that the very people who say 'well only those with something to hide need a privacy law' are never the ones that say 'well if the State does not intend to be unfair why would it protest people having rights'.

    We already have limiting choices and fewer rights than many across the 'free' world. Why throw more away?

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  • Chris Webb

    I may be wrong Kass, but I don't think that the sector workers are disproportionately opinioned to the general population.

    I base this on the susceptability to mass propaganda, and particularly that the media barons appear to not want general rights to exists. Then there is of course the lack of realisation that lobbying to end rights for the 'underserving' ends them for the rest of us too.

    Sadly, by the time the hyped up and those incapable of being holistic catch on to what they have allowed they are normally the ones hanging from gibbets.

    It is unfunny that the very people who say 'well only those with something to hide need a privacy law' are never the ones that say 'well if the State does not intend to be unfair why would it protest people having rights'.

    We already have limiting choices and fewer rights than many across the 'free' world. Why throw more away?

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  • Would not a member of the army forces, police, NHS, education, etc, etc would not be sacked on the spot for saying people or their customers should not have human rights?... So why not for these anti human rights people working in social housing?

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  • Oh Kass, that was amusing. If you'd have noticed, I said "Rachell Wells may be right, although it still requires the tenant to have some input into the situation." You say that makes no sense, then respond with "Rachel Wells would have sorted it out - full stop - obviously with the tenant involvment if that was required"

    So, you agree with me then? Or are you just contradictory by nature?

    Perhaps you should get a better 'grasp' of the situation before making such nosense comments yourself.

    It was never that this whole situation wasn't easily solvable. It was that both parties seemed happy to take this all the way to the HRA when it could have been sorted easily.

    Both the tenant and the Landlord are cupable in that.

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  • Chris Webb

    Get the point but not the examples.

    Would a member of the armed forces be sacked for denying a person human rights - what before killing them?
    Would a policeman also be sacked for ignoring human rights - before battering them to death, or detaining them in conditions worse than farming stock.
    Or an MP - whilst calling for a return of public flogging, banning meetings over the size of two persons, and ejecting laws that protect workers.

    In fact, we appear to be surrounded by organs of the State who are denying or abusing our human rights without any fear of sanction.

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  • Chris Webb

    Get the point but not the examples.

    Would a member of the armed forces be sacked for denying a person human rights - what before killing them?
    Would a policeman also be sacked for ignoring human rights - before battering them to death, or detaining them in conditions worse than farming stock.
    Or an MP - whilst calling for a return of public flogging, banning meetings over the size of two persons, and ejecting laws that protect workers.

    In fact, we appear to be surrounded by organs of the State who are denying or abusing our human rights without any fear of sanction.

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  • It is my humble opinion based on my experiences of housing services and RSL's over the years is that: while many cases of possession brought for non payment of housing benefit may have been preventable by trying to resolve the housing benefit issues, this rarely occurs with the council or RSL taking the lead on resolving the issue.

    I recently had a client with a similar level of arrears because housing benefit point blank failed to make a decision. He had been pro active in seeking assistance to resolve the HB issue, however the department failed to accept that he was only surviving on an income of £45 per week, hence no decision. They had also neglected to make any interim payments on the account while making the decision (which took roughly 6 months).

    The client approached the HPU and requested advice from a prevention and assessment officer because if the HB wasn't resolved, homelessness would follow. The advice was that he had rent arrears he would be intentionally homeless. No duty would be owed, no prevention needed, please turn around walk away from the desk and goodbye. No advice was provided on challenging or speeding up the HB decision.

    Good all round proactive prevention. Well done LB Bexley!

    I would love to say that this is an isolated case, however I'm afraid that it isn't. Council's, in my experience fail to follow even the basics of the pre action protocols unless pushed to do so, and resolving housing benefit issues has been left up to individuals, many of whom are vulnerable and need assistance to read and complete even the basics of forms, including the HB forms.

    It is also my experience that approaching the HPU results in nothing more than a figurative slap in the face with lots of tutting about rent arrears, leading on to intentionality and then an escort from the desk with no more useful advice than before the approach.

    I am therefore applaud the judgement and am glad that the courts can now consider the proportionality of bringing possession cases, especially in cases where the council should be assisting the client to maintain their accommodation.

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  • Alpha One

    Narra, unfortunately the case report was on a paid suscription service, but you might find it on the Times soon. If you have access to the Lawtel service you can find it on there, but I'm not sure it's available on free to air yet.

    PSR, i see the point that the ECHR can step in to provide a check, but the presence of the ECHR didn't stop the possession case going ahead in the first place. Surely the solution is simply to remove Ground 8 so the Courts can hear the facts not just be mandated to award possession? In uncontested cases it would still be almost like a mandatory ground as the defence would not put their side, but in other cases it would be for the court's to decide whether the landlord has done enough to be awarded possession.

    I'd imagine in 9/10 cases possession would still be ordered as mostly landlords are good at following the rules, but in the 1/10 they aren't the court can either choose grant a suspended order or throw the case out entirely. In Powell I would expect the case would have been dismissed had the Landlord not used a mandatory ground for possession on the basis that there was a simple fix.

    Personally I think the staff who bought the case should be held to account personally, they've wasted £200k in costs because they couldn't do their job properly.

    I don't think we need the ECHR to protect us, it's antiquated and so out of touch with modern reality it should be irrelevant. We need to build adequate safeguards into our own laws and systems and not rely on a 50 year piece of jiberish to protect them!

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  • Chris Webb

    Removal of Ground 8 would be a proposition that I would support, but the issues that envoke it's use, for instance as a means to swiftly end an introductory tenancy, would need to be considered. Far better allocations and sign up procedures would be the way forward, looking to identify the very circumstances that would envoke Ground 8 in the first place and then work to minimise the risk to the tenancy being sustained.
    In this case, had the Council done such they would have quickly identified the financial needs issue, and been able to correct the benefit deficit. There would have been no debt, no rush to court, and no massive legal bill for you and I to pay.

    Whilst I recognise that there are strong views about the ECHR, and that it is again a whipping post for Tory aggression (do they suspect it may get in the way of their medium term plans), I would urge anyone to really think widely before they call for its demise. For instance, how would we react to being told that we were not allowed to sing our national anthem whilst in France, or that we were not allowed to choose to eat Danish bacon in Greece. Trivial matters true, but both examples of our right to choose for ourselves what we do. How about more pressing matters, such as not being allowed to defend ourselves in Court in Spain simply for being British. None of these bans exist, but were they brought in the ECHR could be used to contest the loss of rights. If that's too hard to swallow, or thought too flippant a point, look outside of the EU and see how the lack of recourse to human rights sees British citizens imprisoned without fair trial, or in some cases without any trial; or the right to work is refused.

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  • Thanks Alpha. I'll keep an eye out for it if it does come out.

    The court ruling made for some good reading at least!

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  • Alpha One

    I'm not denying a need for some sort of bill of rights, but the ECHR is founded on principles that were prevalent at the time 50 years ago, the concerns of our forefathers are not the same concerns we have today. Not to mention the fact that ECHR and the HRA has been used time and again to either disapply our law or to ride roughshod over long established principles.

    The ECHR is too widely drafted, too easily used by dishonest lawyers looking for a fast buck, and by criminals and law breakers to protect their own human rights at the expense of the rest of ours. Why should the man who ran over a little girl and left her for dead have the right to a family life in the UK when he denied a family the right to their family life and showed absolutely no remorse for doing so? Why should convicted felons have the right to vote in elections, surely by being incarcerated you forfeit your right to have a say in who runs the country! And why should convicted paedophiles (an illness that they will never ever recover from) be allowed to appeal the decision that we should know where they are all the time?

    What about our rights, the rights of people who don't commit crimes, who don't run down people in the street? Where do my human rights fit into this equation?

    The problem with ECHR is that it is disproportionate, the only people who use it to assert their rights are people who have committed crimes or are causing trouble. Surely the point of the ECHR was to provide a balancing act, a shield from oppression, but too often it is used as a weapon to beat people with.

    I believe the ECHR needs to be removed, or at least we should pass legislation that judgements under it will be at best persuassive precedent. In its place we need a bill of rights and responsibilites. So a right to free speech, with the responsibility that we not use it to threaten or intimidate for example.

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  • Chris Webb

    Alpha - each emotive example that you cite is true in the context put. The response though should not be to remove rights but to extend them. That way there will be less risk of injustice at a later point.

    For instance. With the little girl example. We all have a right to a family life, even someone that has taken one. However, the girl's family has a right to family life too - but in this case what is missing is their feeling of justice not being done. Changing the law for an automatic life-ban from driving would seem appropriate, not banning everyone's right to family life which would result from your proposal Alpha.

    In terms of convicted felons voting. Whilst emotive, especially as put in the media, step outside of the emotion and think. A convicted felon can vote already once they have finished their imprisonment, even if they remain on life-long licence. A convicted felon who was not imprisoned for longer than six-months can still be an elected representative at local and national level. We have convicted criminal in both houses of Parliament deciding upon laws and voting. We have convicted criminals across society in a range of vocations, who represent a successful outcome of the criminal justice system as they are considered reformed. There are convicted persons in prison who are too frequently sent to prison on to have been found to be not guilty after many years of imprisonment - thus wrongly denied the right to participate in their parliamentary democracy as well. Whilst it grates on the sensibilities, we are either a democracy or we are not. If we are then the reason for banning someone's participation needs to be justified on the basis of democracy - such as with the Monarchy and the Lords where conflict of interest prohibits their franchise. To do otherwise justifies the eventual removal of voting from whole swathes - for instance with the steps towards the criminalisation of being poor, being without work, being ill or disabled could lead to their loss of the vote if we do not continue to support the human rights legislation that protects us all.

    Even peadophiles deserve rights - but again the balance between rights needs to be in the realm of sense. The reality of the register issue is that there are as few as one case where the application of the ECHR would result in a removal. Without a mechanism that grants removal, mistaken entries, wrongful conviction entries, and other amendments could not be made. The more worrying issue is that the Tory cuts to the police service have rendered the monitoring activity impossible - thus the register becomes useless. The ECHR can be used to reverse such removal of protection - so long as it is not repealed by a majority clamour for emotive response.

    Even your example of free speech, but not used to threaten, shows the problem of the reforms you believe requried. Such a grey description, with 'threaten' open to legal interpretation, means that toletarian governments would be gifted the means to silence dissent by enacting the for of human rights you would call for. That is why I have maintained the stance that calling for the removal of freedoms and rights from one group risks the rights to us all. If the last 30-years have not proven that to you yet then hopefully it soon will. Perhaps the removal of the Police perks for beating up dissenters, destroying lives, and enforcing dictatorial practice will at last see the Police protecting the people rather than the elite - perhaps if they had thought about the consequence of their actions against the rights of workers they would be able to protect their own rights now.

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  • The judgment is available on the supreme court website for anyone interested.

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  • Link to the judgment is also here:

    http://www.bailii.org/uk/cases/UKSC/2011/8.html

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  • This case was about whether the tenant had a right to have the court decide whether or not she should lose her home rather than the council decide that question with no possibility of review.

    As a homeless person she had a type of insecure tenancy, previously thought under domestic law to confer no right on the part of the court to apply any discretion in deciding whether to make a possession order or whether to make eg a postponed possession order. As a non secure tenant the position was that the council was entitled to possession irrespective of the merits of their decision to seek possession.

    In this Mrs Powell won the right to a proportionality review. Hundreds of decisions about tenants and homeowners in difficulties with rent or mortgage take place every day of the week and for secure and assured tenants the court has long been required to carry out a "proportionality review". The legislation usually requires the judge to consider whether it is “reasonable” to grant possession and whether any order should be suspended.

    This decision has importance for other kinds of tenants and occupiers where domestic legislation gives no discretion to the judiciary to attempt justice between the parties.

    It remains to be seen in future cases whether and how far the principle extends beyond the social housing sector to the private sector (assured shorthold tenants) and to mortgage payers. I for one would welcome the judiciary having a wider discretion to intervene in setting the terms on which a mortgage payer who has fallen into difficulties can remain in their home.

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