Jurisdiction and Scale: Rent Arrears, Social Housing, and Human Rights

AuthorCaroline Hunter,Hal Pawson,Dave Cowan
Publication Date01 Jun 2012
DOIhttp://doi.org/10.1111/j.1467-6478.2012.00581.x
JOURNAL OF LAW AND SOCIETY
VOLUME 39, NUMBER 2, JUNE 2012
ISSN: 0263-323X, pp. 269±95
Jurisdiction and Scale: Rent Arrears, Social Housing, and
Human Rights
Dave Cowan,* Caroline Hunter,** and Hal Pawson***
This article draws on the recent work of Mariana Valverde on juris-
diction and scale to frame a study of the interaction between
mandatory possession proceedings brought by one particular type of
social housing provider ± housing associations ± and national as well
as human rights law. It was the explicit political choice to focus social
housing provision on housing associations, as opposed to local
authorities, which opened up the mandatory possession jurisdiction.
The essence of the argument is that, despite the apparent incommen-
surability of these different scales and jurisdictions, they are able to
accommodate each other quite happily. Two sets of texts are used to
develop this argument. First, consideration is given to the legal
technicality through which mandatory possession proceedings might
be challenged. Second, we draw on data from a study of housing
associations practices and policies on the use of one particular
mandatory ground of possession for rent arrears, demonstrating the
way in which scale and jurisdiction, political rationality and
technologies intertwine.
269
ß2012 The Author. Journal of Law and Society ß2012 Cardiff University Law School. Published by Blackwell Publishing
Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
*Law School, University of Bristol, Wills Memorial Building, Queens Road,
Bristol BS8 1RJ, England
D.S.Cowan@bristol.ac.uk
** York Law School, University of York, Heslington, York YO10 5DD,
England
caroline.hunter@york.ac.uk
*** University of New South Wales and Heriot-Watt University, Edinburgh
EH14 4AS, Scotland
h.pawson@hw.ac.uk
An early draft of this article was presented at a seminar at Cardiff Law School, the
Society of Legal Scholars annual conference, University of Southampton, 2010, and the
Law and Society Association meeting, San Francisco, 2011. Thanks to the participants for
their comments, and to Nick Blomley and Antonia Layard who also commented on an
earlier draft. We are also grateful to the reviewers for their constructive engagement. The
usual caveats apply.
INTRODUCTION
It used to be all so simple and mundane ± ma ndatory possession
proceedings were exactly that, mandatory. Possession proceedings are
`mandatory' where a landlord is absolutely entitled to possession, and a
court must grant the possession order (at least in the sense that, provided
that there had been compliance with the correct formalities, if any, and/or
the relevant occupier default had been established, then possession would,
or should,
1
follow as a matter of course). However, in some cases,
mandatory possession proceedings in England can become something rather
different, perhaps less than mandatory, for occupiers of social housing (on
which this article focuses).
The immediate cause of what might be perceived as a crisis or tipping
point can be said to be the introduction of the Human Rights Act 1998 and
attempts by tenants' advocates to draw on its principles in support of their
clients. This led, somewhat tortuously, to the higher United Kingdom courts
first adopting what became known as the two `gateways' of challenge in
such possession proceedings. These gateways derived from the routes to
invoking human rights and public law defences to possession proceedings
that were identified by the majority of the House of Lords in LB Lambeth v.
Kay.
2
They permit the tenant or other occupier of social housing to raise a
defence based on breach of those rights or on public law grounds (gateways
(a) and (b) respectively). More recently, in the face of a consistent, coherent
body of law developed by the European Court of Human Rights, the United
Kingdom Supreme Court has articulated, in outline only, a further line of
challenge based on the disproportionate interference by the housing provider
with occupiers' right of respect to their home.
3
In England, subsidised (social) housing has traditionally been provided by
local authorities and housing associations. In the case of housing associa-
tions,
4
the social housing providers on which this paper focuses, their use of
the mandatory ground for possession on the basis of rent arrears was a matter
of political and internal contestation arising from the decision in 1988 to
move their tenants from the same legal framework as local authorities to the
270
1 That being dependent on judicial practice in the county court ± see the references in
n. 5 below.
2LB Lambeth v. Kay [2006] 2 A.C. 465; confirmed, as well as extended, by the House
of Lords in Doherty v. Birmingham City Council [2009] 1 A.C. 367.
3Manchester CC v. Pinnock [2010] 3 W.L.R. 1441; Hounslow LBC v. Powell [2011]
2 W.L.R. 287.
4 We use this term to refer to what have until recently been known technically as
registered social landlords, but which would now be private registered providers
under the Housing and Regeneration Act 2008. In practice, they are charitable or
not-for-profit organizations providing housing generally at below market rents
formerly registered with the relevant statutory body.
ß2012 The Author. Journal of Law and Society ß2012 Cardiff University Law School

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