Human Rights Act 1998 - Defences

The answer is yes, however, it is unlikely that such defence would be made in claims involving discretionary Grounds. The reason for the weak applicability of Human Rights and Public Law defences applying to claims involving discretionary grounds is due the fact that court is already empowered to determine whether granting possession would be reasonable, even after determining that the Grounds have been proved by the Claimant. The Court is empowered to consider arguments relating to discrimination; vulnerability; disability; effect of eviction; unjust interference with private life; disproportionate interference with the right to private life; the inability to follow proper Public Sector procedure in engaging with tenants and vulnerable individuals; acting unfairly and in disregard of proper public body procedures in brining the claim; and an unlimited set of potential factors which may make the claim for possession unreasonable. All such considerations are factors which make up the framework of Human Rights, Equality Act and Public Law defences. As such, the court by virtue of its power to withhold possession and consider its reasonableness even after the Ground have been proved, is entitled to consider an unlimited set of circumstances and factors which are likely to already be consistent with factors present under the Human Rights Act and Public Law Defences. As such, it is unlikely that a defence as such would be advanced against a claim for possession under discretionary grounds. Advancing such a defence, would only serve to designate factors which the court is already entitled to consider as part of it sweeping and general discretion to determine whether it is reasonable in all the circumstances to grant possession, even if the landlord has proved that Discretionary Ground under which he has claimed.

Nevertheless, it remains that such a defence can still be advanced in its own independent right, against a possession claim, even if made under discretionary grounds. This might happen in the following circumstances:

To shift the standard of scrutiny or introduce a parallel framework – While the court already exercises a wide discretion when assessing reasonableness, framing the tenant's defence in terms of Human Rights (Article 8 ECHR), the Equality Act or public law unlawfulness may invite the court to conduct a more structured and principled analysis of proportionality or procedural fairness, beyond the more general concept of reasonableness. This can be particularly important where there is a compelling public interest or fundamental rights concern.