Final Step
Public Law - Defences
Can defences relating to Public Law be raised in response to a claim under this Ground?
There are two different types of grounds under which the Landlord can claim possession, mandatory and discretionary:
Discretionary Grounds
Even if the Landlord proves any of the discretionary Grounds , the court must still decide whether it will be reasonable to grant possession. They will consider a variety of factors to determine reasonableness.
Mandatory Grounds
If the Landlord proves the ground and the notice and court papers are valid, the court must order possession at once. The court will not consider whether it is reasonable or not, to grant possession.
Is this Ground Discretionary or Mandatory?
This Ground is a Discretionary Ground, this means that even if the Landlord proves this Ground, the court must still decide whether it will be reasonable to grant possession. They will consider a variety of factors to determine reasonableness.
Do Defences relating to Public Law apply to Discretionary Grounds i.e this Ground?
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.
Do Defences relating to Public Law apply to Discretionary Grounds i.e this Ground?
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.
Public Law
Explanation
A public law defence argues that the decision by a public landlord to seek possession was unlawful or unfair, and therefore should not be upheld by the court. This defence is based on principles of administrative law, which require public bodies to act:
Lawfully (within the scope of their legal powers),
Rationally (making sensible, reasoned decisions),
Fairly (giving affected individuals a chance to be heard), and
In line with any legitimate expectations they have created through their past actions or promises.
This type of defence is only available against public landlords — such as local authorities or housing associations exercising public functions — and it treats the decision to evict as a public decision that must meet standards of good governance and legality.
If the landlord’s decision falls short of these standards, the court can intervene and potentially halt the possession proceedings.
Explanation
A public law defence argues that the decision by a public landlord to seek possession was unlawful or unfair, and therefore should not be upheld by the court. This defence is based on principles of administrative law, which require public bodies to act:
Lawfully (within the scope of their legal powers),
Rationally (making sensible, reasoned decisions),
Fairly (giving affected individuals a chance to be heard), and
In line with any legitimate expectations they have created through their past actions or promises.
This type of defence is only available against public landlords — such as local authorities or housing associations exercising public functions — and it treats the decision to evict as a public decision that must meet standards of good governance and legality.
If the landlord’s decision falls short of these standards, the court can intervene and potentially halt the possession proceedings.
Explanation
A public law defence argues that the decision by a public landlord to seek possession was unlawful or unfair, and therefore should not be upheld by the court. This defence is based on principles of administrative law, which require public bodies to act:
Lawfully (within the scope of their legal powers),
Rationally (making sensible, reasoned decisions),
Fairly (giving affected individuals a chance to be heard), and
In line with any legitimate expectations they have created through their past actions or promises.
This type of defence is only available against public landlords — such as local authorities or housing associations exercising public functions — and it treats the decision to evict as a public decision that must meet standards of good governance and legality.
If the landlord’s decision falls short of these standards, the court can intervene and potentially halt the possession proceedings.
What does the Court have to Consider?
Illegality
The landlord acted outside of its legal powers, misunderstood the law, or failed to comply with statutory duties or its own legal obligations.
Example:
A local authority starts possession proceedings against a tenant in temporary accommodation without making a lawful decision that its homelessness duties have ended under the Housing Act 1996. This failure to follow legal procedure makes the eviction unlawful.
Illegality
The landlord acted outside of its legal powers, misunderstood the law, or failed to comply with statutory duties or its own legal obligations.
Example:
A local authority starts possession proceedings against a tenant in temporary accommodation without making a lawful decision that its homelessness duties have ended under the Housing Act 1996. This failure to follow legal procedure makes the eviction unlawful.
Illegality
The landlord acted outside of its legal powers, misunderstood the law, or failed to comply with statutory duties or its own legal obligations.
Example:
A local authority starts possession proceedings against a tenant in temporary accommodation without making a lawful decision that its homelessness duties have ended under the Housing Act 1996. This failure to follow legal procedure makes the eviction unlawful.
Irrational Decision-Making – No Reasonable Public Body Would Have Made the Decision
The decision was so unreasonable that no reasonable authority could have made it. This is the classic Wednesbury unreasonableness standard.
Example:
Evicting a tenant in the middle of a documented mental health crisis without exploring any form of support, alternatives, or engaging with adult social care may be so extreme as to be irrational.
Irrational Decision-Making – No Reasonable Public Body Would Have Made the Decision
The decision was so unreasonable that no reasonable authority could have made it. This is the classic Wednesbury unreasonableness standard.
Example:
Evicting a tenant in the middle of a documented mental health crisis without exploring any form of support, alternatives, or engaging with adult social care may be so extreme as to be irrational.
Irrational Decision-Making – No Reasonable Public Body Would Have Made the Decision
The decision was so unreasonable that no reasonable authority could have made it. This is the classic Wednesbury unreasonableness standard.
Example:
Evicting a tenant in the middle of a documented mental health crisis without exploring any form of support, alternatives, or engaging with adult social care may be so extreme as to be irrational.
Failure to Take Into Account All Relevant Facts and Material
A public landlord must base its decision on all the relevant evidence, including medical, welfare, or support-related information that could affect the fairness of eviction.
Example:
Proceeding with eviction while ignoring a recent GP letter or social worker report that sets out the tenant’s serious vulnerability or risk of self-harm may make the decision unlawful.
Failure to Take Into Account All Relevant Facts and Material
A public landlord must base its decision on all the relevant evidence, including medical, welfare, or support-related information that could affect the fairness of eviction.
Example:
Proceeding with eviction while ignoring a recent GP letter or social worker report that sets out the tenant’s serious vulnerability or risk of self-harm may make the decision unlawful.
Failure to Take Into Account All Relevant Facts and Material
A public landlord must base its decision on all the relevant evidence, including medical, welfare, or support-related information that could affect the fairness of eviction.
Example:
Proceeding with eviction while ignoring a recent GP letter or social worker report that sets out the tenant’s serious vulnerability or risk of self-harm may make the decision unlawful.
Taking Into Account Irrelevant Considerations
The landlord considered irrelevant or improper factors when making the decision to evict — such as personal bias, unverified complaints, or unrelated issues that should not affect the legal process.
Example:
A housing officer includes unrelated historical disputes in their eviction recommendation.
Taking Into Account Irrelevant Considerations
The landlord considered irrelevant or improper factors when making the decision to evict — such as personal bias, unverified complaints, or unrelated issues that should not affect the legal process.
Example:
A housing officer includes unrelated historical disputes in their eviction recommendation.
Taking Into Account Irrelevant Considerations
The landlord considered irrelevant or improper factors when making the decision to evict — such as personal bias, unverified complaints, or unrelated issues that should not affect the legal process.
Example:
A housing officer includes unrelated historical disputes in their eviction recommendation.
Misdirection in Law
The landlord misunderstood or misapplied the law when deciding to take possession action — for example, thinking it had powers it didn’t have, or wrongly believing a legal process had concluded.
Example:
The landlord mistakenly believes that its statutory housing duty has ended and issues proceedings, despite the duty continuing. This is a misdirection in law.
Misdirection in Law
The landlord misunderstood or misapplied the law when deciding to take possession action — for example, thinking it had powers it didn’t have, or wrongly believing a legal process had concluded.
Example:
The landlord mistakenly believes that its statutory housing duty has ended and issues proceedings, despite the duty continuing. This is a misdirection in law.
Misdirection in Law
The landlord misunderstood or misapplied the law when deciding to take possession action — for example, thinking it had powers it didn’t have, or wrongly believing a legal process had concluded.
Example:
The landlord mistakenly believes that its statutory housing duty has ended and issues proceedings, despite the duty continuing. This is a misdirection in law.
Fettering Discretion – Applying a Blanket Policy Without Considering Individual Circumstances
The landlord unlawfully limits its own discretion by blindly applying a general rule or policy — without considering whether the policy is appropriate in the individual case.
Example:
A council applies a blanket “evict after 8 weeks arrears” policy without considering the tenant’s disability, delayed benefits, or support needs. This rigid policy use, without individual assessment, is an unlawful fettering of discretion.
Fettering Discretion – Applying a Blanket Policy Without Considering Individual Circumstances
The landlord unlawfully limits its own discretion by blindly applying a general rule or policy — without considering whether the policy is appropriate in the individual case.
Example:
A council applies a blanket “evict after 8 weeks arrears” policy without considering the tenant’s disability, delayed benefits, or support needs. This rigid policy use, without individual assessment, is an unlawful fettering of discretion.
Fettering Discretion – Applying a Blanket Policy Without Considering Individual Circumstances
The landlord unlawfully limits its own discretion by blindly applying a general rule or policy — without considering whether the policy is appropriate in the individual case.
Example:
A council applies a blanket “evict after 8 weeks arrears” policy without considering the tenant’s disability, delayed benefits, or support needs. This rigid policy use, without individual assessment, is an unlawful fettering of discretion.
Procedural Unfairness
The tenant was denied a fair hearing or the decision-making process was otherwise unfair. Public bodies must follow fair procedures, including proper consultation and notice.
Example:
A landlord decides to evict without telling the tenant the reasons, without allowing them to respond, or without following its own escalation and review process. This violates fairness principles.
Procedural Unfairness
The tenant was denied a fair hearing or the decision-making process was otherwise unfair. Public bodies must follow fair procedures, including proper consultation and notice.
Example:
A landlord decides to evict without telling the tenant the reasons, without allowing them to respond, or without following its own escalation and review process. This violates fairness principles.
Procedural Unfairness
The tenant was denied a fair hearing or the decision-making process was otherwise unfair. Public bodies must follow fair procedures, including proper consultation and notice.
Example:
A landlord decides to evict without telling the tenant the reasons, without allowing them to respond, or without following its own escalation and review process. This violates fairness principles.
Breach of Legitimate Expectation
The tenant had a legitimate expectation — based on a promise, past conduct, or published policy — that the landlord would act in a certain way, and the landlord changed position without fair warning or justification.
Example:
A tenant is told in writing that no eviction action will be taken while a support service is involved. The landlord then issues a notice unexpectedly and without explanation. This may be a breach of legitimate expectation.
Breach of Legitimate Expectation
The tenant had a legitimate expectation — based on a promise, past conduct, or published policy — that the landlord would act in a certain way, and the landlord changed position without fair warning or justification.
Example:
A tenant is told in writing that no eviction action will be taken while a support service is involved. The landlord then issues a notice unexpectedly and without explanation. This may be a breach of legitimate expectation.
Breach of Legitimate Expectation
The tenant had a legitimate expectation — based on a promise, past conduct, or published policy — that the landlord would act in a certain way, and the landlord changed position without fair warning or justification.
Example:
A tenant is told in writing that no eviction action will be taken while a support service is involved. The landlord then issues a notice unexpectedly and without explanation. This may be a breach of legitimate expectation.
FAQ
FAQ
Evidence, Hearing Outcomes, and Defence Implications
Still have questions? We've got answers.
What evidence is required?
The tenant must demonstrate the unlawfulness of the decision, usually by showing:
The landlord failed to follow their own policies or published procedures
No consideration was given to relevant factors (e.g. disability, mental health, vulnerability)
The landlord failed to seek or consider information from adult social care, support workers, or health professionals
Written communication or documents showing misleading or unfair treatment
Internal inconsistencies in how the landlord treats similar cases
Supporting documents may include:
The landlord’s internal policies or decision-making frameworks
Emails or letters between the landlord and tenant
Social care records, support worker correspondence, etc.
What evidence is required?
What evidence is required?
What are the effects on the present hearing?
What are the effects on the present hearing?
What are the effects on the present hearing?
What are the potential effects if the defence is successful?
What are the potential effects if the defence is successful?
What are the potential effects if the defence is successful?
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Achieve effective, efficient and actionable legal support with TenantShield.
Achieve efficient support by using
our Step-by-Step Legal Guides and AI Assistant.