More results...

Generic selectors
Exact matches only
Search in title
Search in content
Post Type Selectors
Filter by Categories
Assured Shorthold tenancy
Benefits and care
Housing Conditions
Housing law - All
Introductory and Demoted tenancies
Leasehold and shared ownership
Licences and occupiers
Mortgage possession
Regulation and planning
Trusts and Estoppel
Unlawful eviction and harassment

Notes and events: rent and evictions freezes, illegal eviction – the police and Art 8, & DA and benefit caps


A few things of interest…

The Scottish government has put the cat amongst the pigeons by announcing that there will be a ban on evictions and a freezing of rent increases until 31 March 2023, to be implemented by fast track legislation. This would apply to both social and private housing sectors. The measure is stated to be in response to the cost of living crisis. If so, it may well be that the March 2023 end date is subject to change. I suspect there will be challenges in any event.

In England, it appears that a social rent rise cap of some 5% is being considered by the government (the rent increase being usually inflation based), but the consultation on this expressly rules out shared ownership, where rent rises are typically set out in the lease as RPI plus 0.5%. Given the RPI rate, those could be very painful rent increases indeed.

We at NL have complained about the approach of the police to illegal evictions on many occasions over the years. The approach is, as best, to say it is a civil matter and wander off, despite illegal eviction being an arrestable offence, at worst to assist in the eviction under the guise of keeping the peace. But a judgment of the European Court of Human Rights might have an impact on this.

In CASE OF JANSONS v. LATVIA, the ECtHR was asked to decide whether a police refusal to intervene where Mr Jansons had been locked out of an apartment, with security guards on the door was a breach of Article 8. The facts were

In August 2009 the applicant signed an agreement on “the use of premises” for an apartment in a residential building in Riga, which was extended on several occasions. The last signed contract stated that it would run until 1 July 2011.

However, in February 2011 the residential building was sold at a public auction.

The new owner, a company, subsequently sent the applicant a letter requesting that he vacate the apartment by 25 June 2012, and no longer accepted his payments for the use of the premises. When he failed to move out, the company cut off the electricity and water supply.

On 8 November 2012 the company placed armed security guards at the entrance to the apartment.

The applicant called the police to the apartment, but they refused to intervene, considering it a private dispute, and left. He made repeated further calls to the police to intervene, in vain, and ultimately left the apartment in the early hours of the following morning to lodge a formal complaint at the police station. While he was absent, the lock to the apartment was changed. The apartment remained guarded over the following weeks and he was refused access.

On 12 December 2012, a bailiff went to the apartment to enforce the court-ordered transfer of possession to the new owner. The bailiff forced entry, changed the locks and removed the applicant’s belongings.

The applicant, who had arrived at the apartment during the procedure, told the bailiff that he was the tenant and could prove it. The bailiff responded that this was not necessary and that he had to carry out his duties.

The applicant called the police, but they again refused to intervene.

It is, however, also worth noting that  Mr J’s subsequent civil and criminal cases failed as he had no right to reside in the apartment under domestic law, as the lease had ended.

The ECtHR held that the property could be regarded as Mr J’s home, he had reside there for 3 years, and there had been an ongoing court case about his right to reside when he was forced out. Art 8 was applicable.

The failure of the police and the bailiff to take appropriate measures to ensure Mr J’s Art 8 rights was therefore a breach

In particular, the police, called to the scene, had to have been aware from the outset that the applicant had in all likelihood been living in the apartment. Yet they had neither given any order to the new owner – who had been acting on its own without any legal authorisation – to stop blocking the applicant’s access to the apartment, nor given any warning that no individual, even one unlawfully occupying premises, could be evicted without a valid court order. Indeed, it should have been evident to the police that a legal dispute could not be relied on to force a person out of his home.

Further, there was an Art 8 with Art 13 breach, as

no civil-law remedy had been available to the applicant: the civil proceedings he had brought had only addressed his right to reside in the apartment, not the unlawful eviction, considering that to be a matter for the criminal courts. A criminal-law remedy had been available, but the resulting investigation had been limited in scope and had not provided effective protection in a situation where tenancy rights had been in dispute.

Of particular interest or potential use in the UK is the finding at para 87:

With respect to the Government’s argument that the applicant could have sought restoration of his physical possession of the apartment by bringing civil proceedings, the Court considers that a mechanism whereby tenants can seek a subsequent determination of the fact that they had had the right to reside in the dwelling from which they have already been removed cannot be regarded as an adequate procedural safeguard capable of preventing unjustified interference with the right to respect for one’s home. It places a disproportionate burden on tenants who are forced to defend their rights through civil litigation after they have already lost their home. Whether the applicant would have succeeded in his argument or not, a legal dispute clearly existed between him and the new owner of the apartment (compare Connors, cited above, § 92), and domestic law required such disputes to be decided by a court prior to the eviction.

There is a dissenting judgment from the President, Judge O’Leary. This makes some strong points about the factual background and Latvian domestic law, as well as remedies that Mr J had failed to seek. And at para 34 of the dissent, she says

In relation to the negative and unlawful interference by the bailiff, the majority considers that “a mechanism whereby tenants can seek a subsequent determination of the fact that they had had the right to reside in the dwelling from which they have already been removed cannot be regarded as an adequate procedural safeguard capable of preventing unjustified interference with the right to respect for one’s home. It places a disproportionate burden on tenants who are forced to defend their rights through civil litigation after they have already lost their home” (see § 87). This reasoning, which seems firstly to presuppose a lawful tenancy, seems secondly to provide a right to remain unlawfully in the premises of another for as long as protracted legal proceedings may take, excluding damages as an effective remedy to compensate ex post facto any unlawfulness or arbitrariness in the manner of one’s removal. Were one to have approached this case from the perspective of the rights of the lawful owner under Article 1 of Protocol no 1, much of the majority’s reasoning in relation to domestic civil remedies would not hold up in my view.

There is some force in this, and I suspect there will be further judgments on this issue in the future.

However, in a situation where domestic law clearly provides for eviction of residents only by court order (Protection from Eviction Act 1977 etc. in England and Wales), there is a strong basis for seeing this judgement as meaning that is a positive obligation on police (and bailiffs) to uphold the Art 8 rights of the occupier. It is not ‘just a civil matter’.

And finally. The Housing Benefit and Universal Credit (Victims of Domestic Abuse and Victims of Modern Slavery) (Amendment) Regulations 2022 (SI 2022/942), laid on 8 September 2022, provide that victims of domestic abuse and of modern slavery are exempted from the LHA/UC shared accommodation rate.


Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.


  1. Dave Hickling, Chair, Association of Tenancy Relations Officers

    Hello there, thanks for drawing attention to this case.
    Given the prosecution role of local authorities set out in Protection form Eviction Act s.6, do you have any thoughts on what this case might imply for the very patchy response from local authorities towards enforcing the Protection from Eviction Act?

    • Giles Peaker

      I think that is a good point, thought the s.7 prosecution power is clearly discretionary rather rather a duty. That said, if the LA has been notified by the tenant of an attempted or ongoing illegal eviction, there might well be a question of a positive obligation to avoid an art 8 breach. I’d really need to have a think and look at ECtHR caselaw on positive obligations on that.

      • Amrit Lohia

        Indeed it’s well-established in general that Art 8 can extend to the conduct of criminal investigations, prosecutions, trials, etc. This goes back at least as far as M.C. v. Bulgaria (2003) (, §152, and some more recent cases which summarise the principles are Söderman v. Sweden [GC] (2013) (, §78-85; Khadija Ismayilova v. Azerbaijan (2019) (, §115 and 117-8; and E.G. v. Moldova (2021) ( – judgment only in French), §39-41.

        It’s true that this line of cases has generally concerned interferences with physical integrity, and that for comparatively less serious interferences, civil remedies have been regarded as sufficient, provided they’re effective (e.g. Söderman at §85). But in this situation, the court seems to have precisely decided that after-the-fact civil remedies *aren’t* sufficiently effective, which would imply that a criminal-law response is needed. This also reflects the general tendency seen in cases such as Bărbulescu v. Romania [GC] (2017) (, §119-123, to in practice reduce the margin of appreciation in the context of Art 8 positive obligations and place greater emphasis on the principle of effectiveness.

        Lastly, one should note that if a positive obligation does exist (as it does here), it’s well-established that s6 HRA can indeed be used to convert discretionary powers into mandatory duties: e.g. R (Morris) v Westminster City Council [2005] EWCA Civ 1184, §66; and more generally, R (Roberts) v Metropolitan Police Commissioner [2015] UKSC 79, §42.

  2. Sam

    Not sure the case goes so far as to compel the police to intervene in an unlawful eviction. Arguably, doesn’t even require an investigation (given there is no requirement for a criminal law remedy). The obligation to act does not extend to there even being a criminal remedy. See para 80 below. The reason ECtHR found for the evicted occupier in this case was due to the fact that his subsequent criminal complaint was discontinued for the wrong reasons (so if you do have a criminal remedy and you decide to investigate you should do it properly). I don’t read that paragraph as either requiring the police to intervene or even take any action following the eviction. Quite certain that a robust response in a case v UK.would result in the UK winning a similar case.

    “80. The Court reiterates that the choice of means for ensuring compliance with the positive obligations falls within the State’s margin of appreciation. The Court’s case-law does not suggest that the obligation to adopt measures designed to secure the right to respect for one’s home in the sphere of relations between individuals necessarily requires the provision of a criminal-law remedy (see Moldovan and Others, cited above, § 96). Nonetheless, in the present case a criminal investigation was carried out to determine, inter alia, whether the offence of breaching the inviolability of home had been committed. This investigation was, in its relevant part, discontinued with the conclusion that the applicant had not been the tenant of the apartment but rather “the person using the premises” in view of the language used in the contract and the fact that he had not registered his residence there (see paragraph 21 above). The decisions included no analysis of whether the applicant had in fact lived in the apartment and whether it might have constituted his “home”, meriting the protection of its inviolability (confer paragraphs 52-53 above). As the applicant’s right to his home was not considered to have been engaged, the lawfulness of SIA Ektornet Residential Latvia’s actions when forcing the applicant out of his home were not assessed. Accordingly, the criminal investigation did not analyse all the pertinent facts of the case and therefore was too limited in its scope, effectively offering no protection in a situation where the tenancy rights with respect to the person’s home were in dispute.”.

    • Giles Peaker

      I’m not sure that is entirely right. See 75-77

      “75. When addressing complaints about the destruction of homes, the Court has already held that the acquiescence or connivance of the authorities of a Contracting State in the acts of private individuals which violate the Convention rights of other individuals within its jurisdiction may engage the State’s responsibility under the Convention (see Moldovan and Others, § 94, and Lăcătuş and Others, § 83, both cited above). Also the police’s failure to intervene and take appropriate measures to end infringements by third parties in the right to respect for the applicant’s home was found to constitute a failure to invest the efforts that could normally be expected of the competent authorities, and led to the finding of a violation of Article 8 (see Surugiu v. Romania, no. 48995/99, §§ 60-68, 20 April 2004). In assessing a State’s compliance with its positive obligations, the Court has also taken into account the question of the effectiveness of a criminal investigation (see Burlya and Others, cited above, §§ 161 and 169-70).

      76. On the basis of the Court’s case-law, it transpires that, under certain circumstances, States have positive obligation to take appropriate measures to assist the individual who has sought such assistance in the face of an attack by a private person on the right to respect for one’s home. Such an obligation must be considered to be triggered in particular when an individual calls the police to defend him against persons trying to evict him by force without any legal authorisation to do so. States enjoy a wide margin of appreciation regarding the choice of measures to put in place in the above regard, provided that they can be effective in the protection of the right to respect for one’s home.

      77. In the present case, SIA Ektornet Residential Latvia, a private entity who owned the apartment, acting on its own and without any decision by a public authority empowering it to do so, forced the door to the applicant’s home, changed the door lock and used armed security guards to prevent the applicant further access to his home. The applicant called the police numerous times. They did come and inspect the scene, and were clearly able to observe that, in all likelihood, the applicant lived in the apartment in issue, and thus they were well aware of the situation as it was developing. The Court considers that, in these circumstances, the respondent State’s positive obligation to ensure effective protection of the applicant’s right to respect for his home was triggered. Nonetheless, the police failed to intervene, referring to the ongoing private dispute (see paragraph 10 above) or the allegation by the previous owner that the apartment was not leased (see paragraph 12 above).”

  3. Sam

    But that is just saying the positive obligation is triggered. Once triggered, it is for the member state (with a very wide margin of appreciation) to decide what to do and the Moldovan case says that might not even require a criminal sanction. Accoridngly, if a state has a criminal code that makes such actions illegal, I would imagine that so long as the law is applied (e.g. if complaint received it is investigated) then the margin of appreciation is discharged. If no action is taken, I very much doubt the ECtHR would have the balls, in a case v the UK, to go behind the UK government’s reasons (unless it was totally bonkers). I also doubt the ECtHR would tell the police when it had to intervene in an operation.

    • Giles Peaker

      I don’t think that is what is being said (or not wholly). Where there is, for instance, legal provision against eviction without court order (as with the PEA ), the positive obligation to assist also arises at the point of the individual asking for assistance from the police – 76 again.

      States can chose the choice of measures, certainly, but where this a provision making it a criminal offence (as with the PEA), the police failing to assist when asked to and attending looks like a breach – para 77.

      And then para 87

      With respect to the Government’s argument that the applicant could have sought restoration of his physical possession of the apartment by bringing civil proceedings, the Court considers that a mechanism whereby tenants can seek a subsequent determination of the fact that they had had the right to reside in the dwelling from which they have already been removed cannot be regarded as an adequate procedural safeguard capable of preventing unjustified interference with the right to respect for one’s home.

      • J

        I’m with NL on this. Para.76: The positive obligation “must be considered to be triggered… when an individual calls the police to defend him against persons trying to evict him by force without any legal authorisation to do so”. Now, there may be room for argument about how the state discharges that positive obligation but one thing that *cannot* discharge it (and, indeed, is a breach of the obligation) is for the police to say “nuffin to do with us gov, it’s a civil matter innit” (which is what the Latvian police appear to have done).

        • Sam

          I agree they have to do something (and the something they do must be in accordance with the law the state has imposed). The point I was trying to make is that I doubt that the “something” requires much in order to discharge the margin of appreciation. Para 80 makes clear that Latvia lost because they discontinued the criminal complaint when it was a perfectly valid complaint to make (i.e. they didn’t apply their own law). They did not lose because the police said “you need to make a criminal complaint, we aren’t going to intervene now”.

          I also doubt the ECtHR would go behind an explanation by the UK government for why not much was done. If you think about it, there are many instances in which a private individual (by committing a crime) interferes with another person’s home. I cannot see how the positive obligation would ever stretch to requiring the police to intervene at the scene every time. Investigate, yes, but it is not going to go any further than that. That is meddling in how a state organises its social and economic policies.

        • Giles Peaker

          I disagree on para 80. The failure to pursue the criminal complaint was *a* breach. It is not the only one and not the only reason Latvia lost. 81 covers 74-80. (Also, re the bailiff at 82-90).

          I think you miss what I (and I think J) are saying. It may not amount to a positive obligation to actually attend every complaint. But if the police do attend, then ‘not for us, it is a civil matter’ is not a compliant option.

        • J

          I think – as the dissent suggests – the Ombudsman findings are important here. It looks like no-one could possibly have thought this was a lawful eviction (armed guards being used!!!!). If the facts were less clear cut then *perhaps* the police could have said they weren’t getting involved and, so long as other remedies were available, there wouldn’t be a breach of Art.8.

          The problem is that – from an E&W perspective – I’d have thought most unlawful evictions were actually relatively close to this one factually. So the police can’t just say “it’s a civil matter”.

  4. James

    Post-Brexit ECtHR has became irrelevant. I hope Liz Truss gets out of those preposterous EU convention pronto. In any event Article 8 is vague and perverse and is hardy worth being excited about. Let us all focus on domestic law: landlord wanted to take possession, there aught to be a quick and efficient way to get that pesky tenant out.

    • Giles Peaker

      Hi James. Tedious though it is to have to point out, the ECHR and ECtHR have nothing to do with the EU. (Also, British lawyers effectively wrote the ECHR). Still, helpful to know that you are in favour of illegal eviction, despite it being criminal under domestic law.

      • James

        Not the brightest to brand those disagreeing with you “private landlords brexiteer idiots.” It becomes increasingly impossible – with crazy loopholes such as indefinitely long mental health moratoriums – to take control of one’s private property in this country. It might come as a shock to you, Giles, but private landlords are not universally evil.

        • Giles Peaker

          Possibly not. But getting the law and where it comes from utterly wrong is not a good starting point, is it? It just makes you look silly.

        • James

          Was there an error of fact in law or just a misprint? My reply was sent in haste and probably with typos from my phone. Now, imagine an ex-military family back from an oversees deployment. They are desperate to move back into their one and only home. Unfortunately, their temporary (fixed-term) tenants have absolutely no desire to move out. Nor that they are willing to continue paying their rent. As we know a mental health debt moratorium is indefinite and easy to orchestrate. What would you do if you were a family seeking to repossess their home from a pair of mental health moratorium fakes?

        • Giles Peaker

          James, you got the law wrong on ECtHR.

          Mental Health moratoriums a=only apply to debt. It would not impact, for example, a s.21 possession claim, or s.8 claim on any other basis than rent arrears.

          If the basis for the moratorium is faked, then there can be an application to set the moratorium aside, or end it.

          No ‘fixed term’ tenancy is temporary, assuming it is an assured shorthold, which it will almost certainly be.

Leave a Reply (We can't offer advice on individual issues)

This site uses Akismet to reduce spam. Learn how your comment data is processed.