When is Article 8 available at the enforcement stage of the eviction process?

In R (JL) v SSD [2013] EWCA Civ 449, the Court of Appeal “broke new ground”* by considering how Article 8 applied to the stage at which possession orders are enforced.

Facts

JL rented accommodation owned by the Ministry of Defence and had done so since 1989. It lacked security of tenure. She lived at the accommodation with her two adult daughters and her grandson. One of her daughters suffered from mental health problems and JL was physically disabled and required the use of a wheelchair.

The Ministry of Defence had provided this accommodation to her despite the fact that it had no duty to do so. This was because she had separated from her husband in 1989 after he had been discharged from the army.

In the mid 1990s the Ministry of Defence told JL that she would have to leave her home and attempts were made to find her alternative accommodation. This failed and in 2007 a claim for possession was brought. JL defended this claim on the basis that her eviction would infringe her Article 8 rights and / or the decision to seek possession was irrational.

In 2009, Collins J ordered that JL give the Ministry of Defence possession of the property within six weeks. He refused to hear the Article 8 defence (because he was then bound by Doherty).

Leeds City Council subsequently decided it owed JL a duty under Part 7 and it was agreed between the parties that she could remain in her home until suitable accommodation was sought. Unfortunately, this took longer than the Ministry of Defence was willing to tolerate and, on 9 March 2011, a warrant was applied for. JL sought permission to judicially review the decision to apply for a warrant on the ground that her eviction would infringe her Article 8 rights. Permission was granted and the judicial review was finally heard in July 2012.

The Ministry of Defence sought to argue that Pinnock prohibited JL from raising an Article 8 defence to defeat the enforcement of a possession order. Ingrid Simler QC, sitting as a deputy, rejected that argument, but found that the eviction did not infringe Article 8 because it was proportionate (see our note here).

JL appealed on two grounds:

First, the Minister’s decision to enforce the possession order was Wednesbury unreasonable because he was not provided with a full or accurate presentation of the material facts with which to be able to make a properly informed judgment.

Second,the eviction would be a disproportionate interference with JL’s Article 8 rights.

Public law

While the judge at first instance had been wrong to hold that the public law challenge had been “overtaken” by the Article 8 defence, the first ground failed because it could not be said that, in the context of the decision that had to be made, the Minister was not fully apprised of the material facts. The Minister was under no obligation to house JL, had obtained a possession order vindicating its right to possession of the property and was aware of JL’s, and her family’s, disabilities and of the fact such disabilities had not changed since the possession hearing. The only material factor of relevance, which had changed since the possession claim, was the fact that JL had failed to obtain alternative accommodation and the Minister was aware of this fact and had taken it into account.

None the less the Court of Appeal reiterated that Article 8 and public law defences were alternatives and both defences required consideration.

Article 8

The Ministry of Defence sought to argue, as they did below, that an occupier could not raise an Article 8 defence at the warrant stage. This was again, unsurprisingly, rejected. However, that did not mean that an occupier would always be able to raise an Article 8 defence at the warrant stage because:

1. An occupant’s Article 8 rights will be respected by a proportionality review at the possession hearing.

2. An occupier will only be able to raise an Article 8 defence at the warrant stage if he was prevented from doing so at the possession hearing or there has been a fundamental change in the occupier’s personal circumstances since the possession claim and such personal circumstances are relevant to the proportionality of the eviction.

3. As an occupier is obliged to request a proportionality review, a failure to do so at the possession hearing will be taken as the occupier waiving their right to a proportionality review. In such circumstances, absent a fundamental change in circumstances, an occupier will not be permitted to raise an Article 8 challenge at the warrant stage.

In the circumstances, as JL had been prevented from having a proportionality review at the possession hearing, she was entitled to raise it at the warrant stage.

None the less, the judge below was entitled to find that her eviction would not be disproportionate. She had correctly assessed the Ministry of Defence’s legitimate aims as being very powerful and had correctly weighed these against the personal circumstances of JL, in particular the fact that as suitable accommodation had not yet been found by Leeds there was the prospect of JL having to move twice. Finally, she was right to hold that the threshold to bet met was as high as at an ordinary possession hearing.

Finally, the Court of Appeal took the opportunity to remind everyone, if it needed to, that it is only “in an exceptional case that circumstances will justify the refusal by a court to make a possession order on the grounds of an Article 8 defence.”

Comment

I don’t think this is a terribly surprising decision.

First, the Minister was always going to fail in his argument that Article 8 did not apply at the warrant stage. In Zehentner v Austria (2011) 52 E.H.R.R. 22 the ECtHR said that  where the measure (of dispossessing a person of their home) includes proceedings involving more than one stage, it is the proceedings as a whole which must be considered in order to see if Article 8 has been complied with. Therefore if an occupier has been prevented from raising an Article 8 defence at a possession hearing she must be able to raise it at the enforcement stage or else there will be an interference.

For the same reason, however, if an occupier has already raised an Article 8 defence in the substantive claim and failed, unless something has happened since, then there is no reason why he should be able to raise it again. The proceedings must be looked at together. Clearly, however, if there has been a change in the occupier’s circumstances, which are relevant to the proportionality of his eviction, then he must be able to raise them at any stage prior to his eviction.

What is slightly more controversial – but in my view right – is the point that a warrant cannot be challenged under Article 8 if a defence was not, but could have, been raised in the possession claim (which will now, further to Pinnock, be every possession claim).

That must be right because it is for the occupier to raise an Article 8 defence; Article 8 does not require the court to assess the proportionality of an eviction unless the point is raised by the occupier. Moreover, if we revisit the oft quoted line from McCann, there is only a breach of Article 8 where an occupier is unable to have the proportionality of his eviction determined by an independent tribunal.

Accordingly, where an occupier is able, when looking at the eviction process as a whole, to ask for a review of the proportionality of his eviction, but has failed to do so, then there can not be a breach of Article 8.

The only time this point has been before Strasbourg has been in the case of Bjedov v Croatia (our note here). That was, however, a slightly odd case in that Strasbourg found that Article 8 had been infringed because procedurally, at the enforcement stage in Croatia, the body responsible for enforcing the order was incapable of considering an Article 8 defence and the occupier had not been given the opportunity to raise one when the possession order was made. I very much doubt Strasbourg would make the same finding in respect of the UK.

This still does leave the question of how, procedurally, an occupier can raise an Article 8 challenge at the warrant stage. As we all know s.89, Housing Act 1980, cannot be read in any other way (see Powell at [62]), but is, in the context of possession hearings, compatible with Article 8 (Powell, at [64]).

If s.89, can’t be read down, then the county court is going to be unable to consider an Article 8 defence at the warrant stage (six weeks will already have expired or if there is time left unlikely to be long enough). It would appear therefore that -as JL did – the only recourse will be to judicially review the landlord bringing the claim. Which is all very well if they are a local authority or housing association that meets the criteria in Weaver but what if they are a private landlord or housing association that does not meet the criteria in Weaver? Time to revisit that declaration I think.

* which is not entirely fair on the deputy judge below who considered the question and, as appears from the decision of the Court of Appeal, got it right.

Posted in FLW case note, Housing law - All, Possession.

About S

S is a barrister, based in London, who practices predominantly in housing and local government law.

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