SPML/LMC anyone claimed for mis selling and unfair charges?

[tifo]

thanks for the posts suetonius and peterjm.Good info.

 

i've done most of what you suggest already, but at least have the chance to start again with another adjudicator. But then he/she might just follow on from the last person's assessment and agree with him. I'll have to wait and see.

 

I've quoted FSA MCOB 12.4.1R, UTCCR, and used some of Sue's 'complaint template' along with 3 FSA reports on GMAC, Kensington and Redstone. I've also spoke with the FSA who agree that the FOS cannot call the charges 'fair' without asking the bank for a breakdown. The FOS say the FSA should enforce rule 12.4.1R, who in turn say they don't look at individual consumer complaints as that's the FOS's remit.

 

The FOS say the FSA Handbook guides them yet won't enforce its rules?

 

I've also quoted from the FOS's own 2009 annual report where they state that a lot of mortgage arrears fee complaints were received and most were upheld. The adjudicator didn't comment.

 

For a previous complaint, I complained to my MP about the FOS who in turn wrote to the Treasury and the response was that, since the FOS is an independent body set up to mediate between consumers and financial companies, it is not appropriate for them to comment or intervene in anything. When i then met my MP, he said to let it go as "water under the bridge". I lost many thousands in a bundle of bad decisions.

 

my complaint isn't against SPML/London or any other sub-prime bank but against Santander.

[tifo]

is my mortgage still 'regulated' as it was taken in August 1999 and i know after October 2004 they were?

 

and do MCOB rules apply to my mortgage?

 

if not, what then ....

[rocket1]

I thought this might be of great interest to us all here.

 

I have had great difficulty copying this report as it contains anti copying software, but it can be read as a pdf file on the blog MODERN TIMES IN MUDSHIRES linked below

 

 

CONCLUSIONS OF THE

FINANCIAL CRISIS INQUIRY COMMISSION – Stupidity & fraud mostly

 

The Financial Crisis Inquiry Commission has been called upon to examine the financial and economic crisis that has gripped our country and explain its causes to the American people. We are keenly aware of the significance of our charge, given the economic damage that America has suffered in the wake of the greatest financial crisis since the Great Depression. Our task was first to determine what happened and how it happened so that we could understand why it happened. Here we present our conclusions.

 

Read the rest of the report by clicking below:

 

 

 

http://rocketspage.wordpress.com/2011/02/03/conclusions-of-the-financial-crisis-inquiry-commission/

Edited February 3, 2011 by rocket1

[peterjm]

This is also from the gmac findings and its good to see this being thrashed out as a clear strategy for reclaiming charges which has always been somewhat of a grey area can be properly formulated,thanks to all for the excellent posts.

Hope I haven't repeated anything already said but its incredible to think that highly paid public servants in the FOS don't know this by heart now.

Every one of these findings can be applied to Acenden.

2.3.

The firm breached Principle 6 during the Relevant Period in that it failed to pay due regard to the interests of its customers and treat them fairly. In particular, the following failings were identified in that GMAC:

(1)

failed to ensure that mortgage servicing staff had an adequate understanding of and implemented the requirement to treat customers fairly in handling its mortgage arrears and repossessions;

(2)

until late 2008, focussed on the collection of payment of arrears over a short period of time within fixed mandates, rather than always establishing a suitable arrangement based on the customer’s individual circumstances;

(3)

applied certain charges to a customer’s account that were unfair in that they did not accurately reflect the actual cost of administering an account in arrears;

(4)

had not arrived at a cost-based approach to the calculation of its arrears charges and therefore could not be sure that they were reasonable compared to the actual cost incurred;

(capstone that was actually stated to the Mail that they had no idea of how the figure was constructed!will try and find a link as it would be good to quote this to the fos )

(5)

caused some letters to be sent to customers that were either factually inaccurate or did not contain sufficient information to give customers a clear and accurate statement of their mortgage account; and

(6)

sometimes issued proceedings for repossession before all alternatives to repossession had been considered and accordingly, did not always use litigation only as a last resort.

2.4.

The firm also breached MCOB 12.4.1R and 13.3.1R in relation to the facts described at paragraph 2.3 above.

2.5.

Edited February 3, 2011 by peterjm

[tifo]

CONCLUSIONS OF THE

FINANCIAL CRISIS INQUIRY COMMISSION – Stupidity & fraud mostly

 

The Financial Crisis Inquiry Commission has been called upon to examine the financial and economic crisis that has gripped our country and explain its causes to the American people. We are keenly aware of the significance of our charge, given the economic damage that America has suffered in the wake of the greatest financial crisis since the Great Depression. Our task was first to determine what happened and how it happened so that we could understand why it happened. Here we present our conclusions.

 

The report is on american stuff and has no relevance to UK.

[peterjm]

tifo,as posted earlier I helped someone with a mortgage from 1988 with the fos which they took surprisingly took on,it was a proper lender who cooperated fully not this lot,as they have taken on your complaint why worry about regulation?cml guidance re treating customers fairly and the overriding objective would still apply.

[Crapstone]

they push letters through my letterbox no doubt more fees and send silly letters over30 so far when i ring them up they dont help atall

 

Unless you can make more sense and take more care with what you write then I doubt anyone can help other than taking a guess. If you have trouble writing can you ask someone to help or put down each part in small pieces so we can see the whole picture? If you have a disability or a language problem them don't be afraid to say so. We don't bite, although Suetonius had been known to chew on a few ears in the past ;-)

 

The above is a bit late and out of context as I'm having problems updating on the thread!

Edited February 4, 2011 by Crapstone

[Crapstone]

my experience of the FOS in this case is very different to what you expect.

 

i've used the extract from Sue (thanks for that) and added some bits of my own using UTCCR, FSA rules and some stuff on securitisation.

 

it got passed to an adjudicator who said:

 

1. Mortgage arrears charges are NOT WITHIN THEIR REMIT TO INVESTIGATE, so he'll look at the overall treatment the bank handed out to me.

2. He considers arrears charges to be fair because they're set at a market rate.

3. The charges were considered fair by the test case last year (same principle).

4. He can't look at the mortgage being sold through the shadow banking system.

5. The bank treated me fairly because it's my fault i went into arrears.

6. He won't look at the legal fees or the solicitor's actions.

 

I didn't agree with his findings and asked him to explain:

 

1. How he can call the charges fair without having investigated their actual cost (with a breakdown), especially if he says they're outside his remit.

2. Where it says they can't look at arrears charges (he pointed me to the FSA Handbook).

3. When did the test case look at mortgage account T's and C's or investigate their fees.

4. The solicitor was instructed by the bank as an agent and thus the bank is responsible for their actions.

5. Why does the bank sign its letters with "as administrator". And for whom?

 

And that if the charges are outside their remit then he cannot refer to them in his decision, not a single point, since its not something he can look at and i don't want his personal opinion on these charges. That would make his decision a bit harder to write up since it all consists of arrears charges!

 

I didn't get any answers from him. He's now left the FOS and it will be allocated to another adjudicator.

 

Any advice for me and others taking arrears charges to the FOS and faced with this sort of response?

 

Market rate my ****!!!

 

They do have the REMIT to look at mortgage charges and fees as well as conduct. If they didn't then I wouldn't have got ALL mine back and if the rules had changed then they'd be quick to start applying them again on the account.

 

The FOS asked Capstone to provide a list of their charges and fees and to justify them. This was at Ombudsman stage as I had already gone through the rest and Capstone/ SPML appealed every time. I say appeal but if you'd have read it you would have laughed. More like a whinge that they are always being picked on and have the right to charge what they like without question and it's nothing to do with anyone else. They refused to supply the list of charges and so it was ruled that they the FOS had no choice but to say they were unjustified. They tried charging again shortly after and after a quick reminder they took all those charges off too and haven't applied anything since then.

 

I refused every offer from Capstone in settlement and sent everything (SAR's) and anything they sent inbetween to the FOS. I know you don't have to be a genius to do it and it can be done, or is designed to be done, by anyone. But it it does make it far more simple if you go through it yourself and highlight the points the want to make. It's not a court and they do like it in your own words but when it comes to sending in all the paperwork it's better to give them a clue on what they are supposed to be looking for.

 

Keep at it. I quoted the MCOB and your mortgage will still be under the remit of FOS. You just have to dig your feet in and argue every inch of the way.

[AnimalMagic]

is my mortgage still 'regulated' as it was taken in August 1999 and i know after October 2004 they were?

 

and do MCOB rules apply to my mortgage?

 

if not, what then ....

Mortgages prior to Oct 2004 are unregulated, however S140A CCA 1976 Unfair Relationships applies. MCOB rules can be used to show unfairness. FOS still has jurisdiction. Unfairness has to have manifest after April 2008 (Need to check this date = date legislation came into force), however if it does, then previous unfairness can also be examined by the Courts.

[rocket1]

The report is on american stuff and has no relevance to UK.

- post 7100

 

Tifo, the reason I found the , CONCLUSIONS OF THE FINANCIAL CRISIS INQUIRY COMMISSION report relevant is that is uses fairly easy to understand layman's language to describe the appalling immorality of the sub-prime mortgage industry, together with it's devious inclinations and mis-representations and mis-selling to householders which has resulted in millions of re-possessions in the USA and quite a few in the UK.

 

The report sheds light & understanding of how ghastly the banks were in deliberately manipulating the entire global economy in a frenzy of greed which not only caused millions of re-possessions, but even greater economic destruction of many countries entire economies.

 

The report is relevant because a very small number of banks, operating globally, had and still have, a stranglehold on World finances & economies. They took over the mortgage market which all householders rely on for financing home purchase, and used their deviousness to deliberately drive up property prices and the costs of mortgages to milk millions of people who were reluctantly forced to use their usurious loans to buy family homes.

 

This whole dishonest saga started off in the USA and spread to the UK as the American banks moved to London to operate within the UK.

 

THE REPORT CAN BE READ HERE: http://rocketspage.wordpress.com/2011/02/03/conclusions-of-the-financial-crisis-inquiry-commission/

 

 

So the American CONCLUSIONS OF THE

FINANCIAL CRISIS INQUIRY COMMISSION report is relevant to us as the problems in the UK were directly imported from immoral dishonest and banks in America. The American report makes this fairly clear.

 

The UK is suffering precisely the same financial problems as the USA, caused in both countries by the same mechanism and by the same banks. It is one and the same problem.

Edited February 4, 2011 by rocket1

[tifo]

The FOS asked Capstone to provide a list of their charges and fees and to justify them.

 

My bank refused to supply me a list of all charges and the FOS has, so far, refused to ask them as it's not something they're looking at because of "outside our remit" (arrears charges).

 

But i'll carry on with the complaint at the FOS and would raise the same issues at court, were my lender to again enforce the suspended repossession order. They threatened to just before it got passed to the FOS but haven't said anything since.

[peterjm]

http://www.thisismoney.co.uk/news/opinion/article.html?in_article_id=489382&in_page_id=19&in_author_id=1865

This is the link to the article printed below where capstone/acenden were unable to show how they calculated their charges when confronted by the press,something that could be included in the FOS complaint.Also quoting Northern Rocks calculation of the true cost of administering an account in arrears being about £25 which could be used as a yardstick, not the £60 then £85 acenden now charge.

Look at how long they have been getting away with this without intervention,disgraceful put mildly.

The full story.

 

Making profit from hard-up homeowners

 

 

8 August 2009

Reader comments (3) About the time it was gearing up to unveil £724m losses for the first half of 2009, State-owned Northern Rock made another much less noticed announcement.

It said it would reduce the monthly charge for mortgage borrowers in arrears of three months or more from £55 to £25.

Why? 'Because the cost of administering a mortgage account in arrears is about £25 a month,' it said.

In other words, charging the higher fee in the past had been a source of profit.

Northern Rock's decision might have had something to do with a damning report on how mortgage arrears are handled, which was published yesterday by the Treasury Select Committee, but let's give the bank the benefit of the doubt.

Other banks continue to hit customers with excessive monthly arrears administration charges of anything up to £115 and these are just the tip of a much larger scandal surrounding the way lenders treat mortgage borrowers in trouble.

And the problem does not affect merely a few - whichever way you cut them, the figures are big.

At the end of March, 399,000 mortgage accounts were in arrears, up a third on 2008. The Council of Mortgage Lenders expects 360,000 borrowers to be behind on repayments by the end of this year.

That will add up to 2.5% or more of their outstanding loans. And that would be twice the figure for borrowers in the same position in December 2008.

Rising fastest is the number of borrowers in the worst trouble. At the end of March 2008, according to the CML, 15,000 borrowers owed 12 months' repayments or more. This March the figure was up threefold to 51,000.

The monthly arrears administration charges, along with other sundry fees, are simply added by lenders to borrowers' spiralling accounts, blotting out any attempt by homeowners to whittle down arrears.

Take specialist mortgage lender Preferred, which charges a monthly 'arrears management fee' of £60.

Preferred exists only in name now and the agency that handles the remnants of its business, Capstone Mortgage Services of High Wycombe, Buckinghamshire, was unable to explain how that £60 was calculated.

If a borrower has equity in his property, it appears not to matter to some lenders how much the arrears mount up.

An eventual repossession and sale will see the lender right and to hell with the homeowner.

Only cynicism on this scale can explain the outrageous approach of some lenders. Citizens Advice, for example, cites the case of one woman who, although she was making monthly payments towards her mortgage, was still being charged the £50 monthly arrears fee.

When she asked the lender for help it sent round its own debt counsellor - and charged her £100 for the privilege.

Charges mount even more steeply and bewilderingly when repossession is under way. Someone needs to change locks on the repossessed property? Oh well, just charge £400 to the homeowner's bill and another £50 for managing the process and then rack up interest on the lot.

Last week, Financial Mail saw one repossessed borrower's final statement. The property was sold for £85,000 but the estate agent's fees were £4,055. Who pays 5% when estate agents generally charge about 2%? Clearly, those who can least afford it.

 

 

 

 

 

 

 

 

 

 

This is also from the gmac findings and its good to see this being thrashed out as a clear strategy for reclaiming charges which has always been somewhat of a grey area can be properly formulated,thanks to all for the excellent posts.

 

Hope I haven't repeated anything already said but its incredible to think that highly paid public servants in the FOS don't know this by heart now.

Every one of these findings can be applied to Acenden.

2.3.

The firm breached Principle 6 during the Relevant Period in that it failed to pay due regard to the interests of its customers and treat them fairly. In particular, the following failings were identified in that GMAC:

(1)

failed to ensure that mortgage servicing staff had an adequate understanding of and implemented the requirement to treat customers fairly in handling its mortgage arrears and repossessions;

(2)

until late 2008, focussed on the collection of payment of arrears over a short period of time within fixed mandates, rather than always establishing a suitable arrangement based on the customer’s individual circumstances;

(3)

applied certain charges to a customer’s account that were unfair in that they did not accurately reflect the actual cost of administering an account in arrears;

(4)

had not arrived at a cost-based approach to the calculation of its arrears charges and therefore could not be sure that they were reasonable compared to the actual cost incurred;

(capstone that was actually stated to the Mail that they had no idea of how the figure was constructed!will try and find a link as it would be good to quote this to the fos )

(5)

caused some letters to be sent to customers that were either factually inaccurate or did not contain sufficient information to give customers a clear and accurate statement of their mortgage account; and

(6)

sometimes issued proceedings for repossession before all alternatives to repossession had been considered and accordingly, did not always use litigation only as a last resort.

2.4.

The firm also breached MCOB 12.4.1R and 13.3.1R in relation to the facts described at paragraph 2.3 above.

2.5.

Edited February 6, 2011 by peterjm

[tifo]

thanks ....

 

my bank charged me between £20 and £35 per arrears fee. It may be higher now but i don't know as they won't tell me.

[Crapstone]

My bank refused to supply me a list of all charges and the FOS has, so far, refused to ask them as it's not something they're looking at because of "outside our remit" (arrears charges).

 

But i'll carry on with the complaint at the FOS and would raise the same issues at court, were my lender to again enforce the suspended repossession order. They threatened to just before it got passed to the FOS but haven't said anything since.

 

They can't 'refuse'. You have a right to see all your account details.

[tifo]

They can't 'refuse'. You have a right to see all your account details.

 

Sorry, maybe i didn't say it right.

 

My bank won't send me a list of the arrears charges they've applied to the account, by extracting this information from the account.

 

They say i already have this in my yearly statement (i don't because that gives total interest, capital balance and payments made in the year). I asked the solicitor and they just sent me a statement, from which i can extract the charges amounts, but this was only for the last year.

 

My charges go back to around 2003 and have continued since. The account's been in and out of arrears many times with repossession and eviction hearings. Every time i've then paid a lump sum to save my house and arrears charges (and i think legal fees) have been part of this balance. There are around £5,000 of charges and much more, prob £8,000 in legal fees (some capitalised).

 

I haven't done a SAR request yet as i only want to know the arrears and legal fee amounts. I have a total fees per year statement from the solicitor in relation to how much fees they've charged and want to challenge these as well, since an agency rep was always sent with one instruction (to get the order for repossession/eviction) and could not discuss anything else.

 

The bank won't say why they sign their letters to me with "as administrator". Though i know it's because of it being securitised but i ask "administrator for whom".

Edited February 7, 2011 by tifo

[slgsue]

Sent the email regarding charges from Suetonious to my adjudicatior on Friday.

 

Had the following response today:-

 

Thank you for your email. I have noted your comments which will be added to my file and taken into consideration when I am assessing your complaint.

I will be in touch in due course

this is one battle I will not give up on - it seems to me that the FOS are trying to avoid the issue, my question is why??????

[Crapstone]

Sorry, maybe i didn't say it right.

 

My bank won't send me a list of the arrears charges they've applied to the account, by extracting this information from the account.

 

They say i already have this in my yearly statement (i don't because that gives total interest, capital balance and payments made in the year). I asked the solicitor and they just sent me a statement, from which i can extract the charges amounts, but this was only for the last year.

 

My charges go back to around 2003 and have continued since. The account's been in and out of arrears many times with repossession and eviction hearings. Every time i've then paid a lump sum to save my house and arrears charges (and i think legal fees) have been part of this balance. There are around £5,000 of charges and much more, prob £8,000 in legal fees (some capitalised).

 

I haven't done a SAR request yet as i only want to know the arrears and legal fee amounts. I have a total fees per year statement from the solicitor in relation to how much fees they've charged and want to challenge these as well, since an agency rep was always sent with one instruction (to get the order for repossession/eviction) and could not discuss anything else.

 

The bank won't say why they sign their letters to me with "as administrator". Though i know it's because of it being securitised but i ask "administrator for whom".

 

You either get an SAR sent off or ask for a statement of affairs. The latter is usually used if you are in arrears, (it may have changed but someone will soon say if I'm wrong!) It's far better to pay the £10 for an SAR as you will need as much information as you can get hold of to challenge them. Ask for all the legal receipts too.

 

A lot of people seem to be scared to stir what is already muddy water that they are drowing in. I felt the same. Should I , shouldn't I? Am I going to make things worse for myself? Am I capable of putting the wording across without looking like a right idiot? Will I be able to understand what they write back? It couldn't have got any worse. I had nothing to lose and everything to gain.

[Crapstone]

Sent the email regarding charges from Suetonious to my adjudicatior on Friday.

 

Had the following response today:-

 

Thank you for your email. I have noted your comments which will be added to my file and taken into consideration when I am assessing your complaint.

I will be in touch in due course

this is one battle I will not give up on - it seems to me that the FOS are trying to avoid the issue, my question is why??????

 

It's a standard response and nothing to worry about.

[peterjm]

Where is everybody?

[littledotty27]

I’ve had a letter from Ascenden this week with a whole new tariff of charges. They’ve renamed the litigation management fee,this is now called “Late Stage Arrears Management Fee” and has been reduced from £115 to £95.Also a new Early Stage Arrears Management Fee of £65 which is basically if an account is in arrears.

Repossession stage is still £115,…statements,redemption figure fees,3rd parties,data protection etc etc all remain the same fee.If you don’t pay by direct debit,standing order,chaps

or through Ascenden admin website online then you will be charged £5 to your account.

 

So realistically they are saving me £20 off one hand and adding a £5 onto the other.

At the end of the day their still milking the cream from the top!!!

[slgsue]

What a joke!!!! I can't pay by direct debit because the muppets can only take direct debits on 1st of the month and I pay 15th as ordered by the lovely judge from my suspension of repo. I think I will get OH to set up a standing order in that case as I don't want £5 a month added to my account. Just another way to keep you in arrears and trying to get their dirty flea bitten mits on peoples homes!!!!!

[flower2]

I too have received the new charges I normally pay via Faster Payment scheme this is in ascenden's bank within 2hrs, now I am going to be charged £5 for this. I pay this way as pay days are not always on the same day, this way I know the money is in the bank & not charged both ends.

 

This is another way to increase our arrears, shamefull can we not do anything?

[rocket1]

What does anyone make of this ?

 

Basically a County Court Judge flagged this up as a reason to grant a temporary stay of eviction. But, although para 4 & 50 of the judge say it doesn't apply to private property owners but only public property owners, it does actually apply it was just deliberately ignored in this judgement so as not to make this judgement even more complicated & fuzzy.

 

You need to read the whole judgement to understand it all. But then, as the country court judge said, no one quite understands it yet as it is unclear & has huge implications which mean :

 

Every repossession (not just public landlord tenancies) hearing has to consider the individual facts of that particular case in order to consider the concept of 'proportionality' according to the European Court Human Rights article 8.. If this has not been done, it breaks the ECHR article 8 and is therefore unlawful.

 

THEREFORE, WHEN PROPORTIONALITY IS CONSIDERED, THE FACTS OF EACH AND EVERY SEPARATE CASE MAY THEN GIVE THE COURT MUCH WIDER DISCRETION TO MAKE ORDERS OTHER THAN AUTOMATIC REPOSSESSION AS HAS BEEN THE CASE PREVIOUSLY.

 

IN OTHER WORDS, A COURT MAY DECIDE A SUB-PRIME LENDER HAS BEHAVED DISPROPORTIONALLY (THEY ALL DO, AS WE KNOW) AND THE JUDGE MIGHT MAKE AN ORDER LESS FAVOURABLE TOWARDS THE LENDER WHICH HAS NOT BEEN POSSIBLE UNTIL THIS RECENT PINNOCK JUDGEMENT.

 

The Pinnock judgement - http://www.supremecourt.gov.uk/docs/UKSC_2009_0180_Judgment2.pdf

 

 

 

21. This appeal gives rise to four main issues, of increasing specificity. The first is

whether the jurisprudence of the European Court of Human Rights (“EurCtHR”)

requires that, before making an order for possession of property which consists of a

person’s home pursuant to a claim made by a local authority (or other public

authority), a domestic court should be able to consider the proportionality of evicting

that person from his home under article 8, and, in the process of doing so, to resolve

any relevant factual disputes between the parties. We deal with that question in paras

22-54 below and answer it in the affirmative. The second issue (paras 55-64 below) is

what this conclusion means in practice in relation to claims for possession, and related

claims, in relation to residential property. The third issue (paras 65-107 below) is

whether the demoted tenancy regime in the 1985, 1996 and 2003 Acts can properly be

interpreted so as to comply with the requirements of article 8, or whether at least some

aspects of that regime are incompatible with the occupiers’ article 8 Convention

rights. The fourth issue (paras 108-132 below), which requires a fuller consideration

of the facts of this case, is how the appeal should be disposed of in the light of the

answers on the first three issues.

First issue: what does the Convention require of the courts?

 

The nature of the issue

 

22. So far as relevant, article 8 of the Convention provides:

 

“1. Everyone has the right to respect for ... his home... .

2. There shall be no interference by a public authority with the exercise

of this right except such as is in accordance with the law and is

necessary in a democratic society in the interests of ... the economic

well-being of the country, for the prevention of disorder or crime, ...or

for the protection of the rights ... of others.”

It is also appropriate to refer to article 6, which, so far as relevant, provides:

 

“In the determination of his civil rights and obligations ... everyone is

entitled to a fair ... hearing ... by an independent and impartial tribunal

established by law.”

 

23. The argument on behalf of Mr Pinnock is as follows.

(a) At any rate where the person seeking possession is a “public authority”, a

court invited to make an order for possession of a person’s home must be

satisfied that article 8 is complied with.

(b) Accordingly, in the present proceedings, Judge Holman had to satisfy

himself that the order for possession which he was being invited to make

complied with article 8.

© Article 8, when read together with article 6, required the Judge, as the

relevant independent tribunal, to be satisfied that the order for possession (i)

would be “in accordance with the law”, and (ii) would be “necessary in a

democratic society” – i e, that it would be proportionate.

(d) The order for possession was “in accordance with the law” since it was

made pursuant to the provisions relating to demoted tenancies in the 1985 and

1996 Acts, which are in principle unobjectionable under article 8.

(e) However, Mr Pinnock was not given the opportunity to raise with the court

the question whether the order for possession was, in all the circumstances of

this case, proportionate. Therefore article 8 was violated.

(f) Further, in order to determine proportionality, the court should have had

power to resolve for itself any issues of fact between the Council and Mr

Pinnock, and to form its own view of proportionality, rather than adopting the

traditional judicial review approach taken by the Judge.

(g) Either the legislation should be interpreted to have the effect contended for

in points (e) and (f), or this court should make a declaration of incompatibility.

 

 

Second issue: the application of this conclusion in general

 

 

55. The conclusion that, before making an order for possession, the court must be

able to decide not only that the order would be justified under domestic law, but also

that it would be proportionate under article 8(2) to make the order, presents no

difficulties of principle or practice in relation to secure tenancies. As explained above,

no order for possession can be made against a secure tenant unless, inter alia, it is

reasonable to make the order. Any factor which has to be taken into account, or any

dispute of fact which has to be resolved, for the purpose of assessing proportionality

under article 8(2), would have to be taken into account or resolved for the purpose of

assessing reasonableness under section 84 of the 1985 Act. Reasonableness under that

section, like proportionality under article 8(2), requires the court to consider whether

to order possession at all, and, if so, whether to make an outright order rather than a

suspended order, and, if so, whether to direct that the outright order should not take

effect for a significant time.

Edited February 19, 2011 by rocket1

[AnimalMagic]

Basically a County Court Judge flagged this up as a reason to grant a temporary stay of eviction. But, although para 4 & 50 of the judge say it doesn't apply to private property owners but only public property owners, it does actually apply it was just deliberately ignored in this judgement so as not to make this judgement even more complicated & fuzzy.

I'm struggling to understand how it would apply to private owners. Can you clarify?

[Suetonius]

I'm struggling to understand how it would apply to private owners. Can you clarify?

 

Your not the only one struggling AM... I am right there beside you, so to speak

 

Article 8

Right to respect for private and family life

 

1.Everyone has the right to respect for his private and family life, his home and his correspondence.

 

2.There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

 

A mortgage lender is not, unlike for example a Court, hearing the repossession proceedings a public authority to which article 8 applies.

 

 

Public authorities

Acts of public authorities.

 

(1)It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

 

(2)Subsection (1) does not apply to an act if—

 

(a)as the result of one or more provisions of primary legislation, the authority could not have acted differently; or

 

(b)in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.

 

(3)In this section “public authority” includes—

 

(a)a court or tribunal, and

 

(b)any person certain of whose functions are functions of a public nature,

 

but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.

 

The intention of Parliament was that a wide range of bodies performing public functions would fall within the obligation under section 6 to act in a manner compatible with the “Convention rights” established under the Act.

 

However, while the Convention had been designed to protect the individual from abuse of power by the State, the Human Rights Act was enacted at a time when the map of the public sector had been redrawn, as privatisation and contracting-out had, over several decades, increased the role of the private and voluntary sectors in the provision of public services. This development was acknowledged and considered by those who drafted and debated the Act. In particular, it was clearly envisaged that the Act would apply beyond activities undertaken by purely State bodies, to those functions performed on behalf of the State by private or voluntary sector bodies, acting under either statute or under contract. The Act was therefore designed to apply human rights guarantees beyond the obvious

governmental bodies. Section 6 identified two distinct categories of “public authorities” which would have a duty to comply with the Convention rights.

 

First, under section 6(3)(a), “pure” public authorities (such as government departments, local authorities, or the police) are required to comply with Convention rights in all their activities, both when discharging intrinsically public functions and also when performing functions which could be done by any private body. So, for example, a local authority must as a pure public authority comply with the non-discrimination standards imposed by Article 14 of the Convention not only in its provision of public housing but also in its dealings with building contractors.

 

Second, under section 6(3)(b), those who exercise some public functions but are not “pure” public authorities are required to comply with Convention human rights when they are exercising a “function of a public nature” but not when doing something where the nature of the act is private (section 6(5)). Only those bodies which fall within either of these categories (“pure” or “functional” public authorities) have a direct obligation under the Act to comply with Convention rights. The meaning of “public authority” is therefore crucial to securing comprehensive human rights protection.

Edited February 22, 2011 by Suetonius