Tag Archive for 'Article 8'

I think they're trying to tell us something

Published
by
J
on 23/10/2009
in FLW case note and Housing law - All
. 2 Comments

The European Court of Human Rights has just given judgment in Paulic v Croatia (App. No. 3572/06), a case on Article 8 and possession proceedings. Given the unbroken trend of authority from Connors to Zehentner, via McCann and Cosic (all noted in the excellent and Tarantino-themed post by Dave, here), it shouldn’t be too difficult to guess how this case went.

Mr Paulic was a civilian employee of the Yugoslav People’s Army (“YPA”) who, in 1991, was granted the right to occupy (and purchase) a flat owned by the YPA. In July 1991, the Croatian state prohibited all land transactions involving property which was owned by the YPA. Despite this, Mr Paulic and his family took possession in September 1991. In October 1991, the possessions of the YPA (including the flat), passed to the Republic of Croatia.

In 1997, Mr Paulic applied to exercise the Croatian version of the Right to Buy and the Croatian state cross-applied for possession of the flat. In October 2000, the Municipal Court dismissed the Right to Buy claim and granted possession. The reasoning of the Court was that Mr Paulic did not have a tenancy, having entered into possession in violation of the July 1991 prohibition. Since Mr Paulic had no legal right to occupy the flat, a possession order had to be made. His appeal to the County Court was dismissed for similar reasons. A further appeal to the Supreme Court also failed as did a complaint to the Constitutional Court. At the date of the judgment of the ECtHR, he still had not been evicted as enforcement of the judgment had been postponed.

Mr Paulic applied to the ECtHR, contending that the requirement to make a possession order without any regard to his circumstances was a breach of Article 8. In particular, he relied on the fact that:

(a) the flat had been his home for more than seventeen years;

(b) he had been allowed into possession in the first instance.

The Government argued that there was no interference because:

(a) Mr Paulic had not yet been evicted;

(b) possession had been granted pursuant to the domestic law which regulated ownership and use of land. That domestic law fell within the margin of appreciation to be afforded to the State.

The ECtHR found that there had been a violation of Article 8. The property was clearly Mr Paulic’s home. Merely because he had not been evicted did not mean that there was no interference, that occured when the possession order had been made – Stankova v Slovakia (App. No. 7205/02), McCann v UK (App. No. 19009.04) and Cosic v Croatia (App. No. 28261/06). There was no reason to depart from those decisions.

The domestic courts had only considered the position as a matter of domestic law and, once satisfied that domestic law did not provide Mr Paulic with a right to remain, had “made no further analysis as to the proportionality of… his eviction” (at [42]), That was insufficient. The “guarantees of the Convention require that the interference… be not only based on the law but also be proportionate… to the legitimate aim pursued, regard being had to the particular circumstances of the case” (at [42]). No provision of domestic law should be interpreted and applied in a manner which is incompatible with the Convention (again, at [42]).

It went on to say that “any person at risk of an interference with his rights under Article 8 should be able to have the proportionality and reasonableness of the measure determined by an independent tribunal applying the relevant principles under Article 8″ (at [43]).*

It did accept, however, that a court only needed to consider Article 8 where the defendant raised such an argument and that, if raised it would be for the court to rebut the claim. The ECtHR did not accept that allowing occupiers to raise an Article 8 defence in this manner would have serious consequences for the functioning of domestic landlord and tenant law in any of the countries bound by the Convention (at [43]).

Accordingly, there had been a violation of Article 8.

For my part, I couldn’t agree more. What is particularly important (at least to my mind) if the decision (in line with Cosic and Stankova) that it is not for a domestic court to act in a manner which violates the Convention and a court cannot claim that it was merely applying domestic law as an answer to such a criticism. cf the discussion of s.6(2)(b), Human Rights Act 1998 in Doherty. As I’ve said previously, I don’t see how Kay et al can stand in the face of this consistent line of jurisprudence from the ECtHR and Paulic should provide further encouragement for those who seek to have the Supreme Court reconsider (as a panel of 9?) the decisions in Qazi, Kay and Doherty.

*(By way of footnote – para [43] of Paulic is lifted from Cosic (at [22] of that case) and goes slightly further than McCann (at [50] of that judgment). McCann only said that an assessment of the proportionality is required whereas Paulic and Cosic say that an assessment of the proportionality and reasonableness is required. It seems to me that Cosic and Paulic support a view that reasonableness is something different to proportionality).

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Peverse incentive

Published
by
J
on 02/08/2009
in FLW case note, Housing law - All, Licences and occupiers, Possession and Regulation and planning
. 0 Comments

We don’t usually cover gypsy & traveller planning permission cases, since they tend to turn on their own facts, but Rafferty and another v Secretary of State for Communities and Local Government and another [2009] EWCA Civ 809 has one point of wider importance.

The appellants owned a site (comprised of two separate plots) at Reeves Ground. They did not move onto the site but applied for planning permission. That was refused, both by the local planning authority (North Somerset Council) and by the planning inspector.

Part of the reasoning of the inspector was that, because the appellants did not live on the land, any dismissal of their application would not amount to a violation of their rights under Art. 8, European Convention on Human Rights. There was no loss of their home and, hence, no interference.

The case came before the Court of Appeal on a number of points, but this was the most significant one. The Court of Appeal was troubled by the logic. It was clear that a person who moved onto land (unlawfully) and then applied for planning permission could rely on Art. 8. Why should a person who had applied for permission without first going (unlawfully) onto the site be in a worse position? That was a perverse incentive and one which encouraged persons to break the law, in order to acquire the benefit of an Art. 8 argument.

The inspector was, therefore, wrong. It was “as much a lack of respect not to allow [the appellants] to move onto the site… as to make them move off it. The effect in either instance [was] to deny them a stable base” (at [28]).

However, it was inconceivable that the inspector would have granted planning permission even if he had not fallen into the error described above. Appeal dismissed.

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"Something of a mess"

Published
by
J
on 29/05/2009
in FLW case note, Housing law - All, Licences and occupiers and Possession
. 1 Comment

We first noted Defence Estates v L and another [2009] EWHC 1049 (Admin) a few weeks ago and now the transcript is available.

The history

L was married to an army officer. He was a violent alcoholic who abused both his wife and their daughters. In 1989 he resigned following a court martial which found him guilty of ungentlemanly conduct. The Army then (in September 1989) – on compassionate grounds – arranged to house L and her two daughters in Leeds, where the children attended school.

The premises in Leeds were said to be temporary until L could secure housing from the local housing authority. In September 1990 the licence to occupy was said to be terminated and in July 1993 a possession order was made (I pause here to note that the effect of para. 11, Sch. 1, Housing Act 1988 is to prevent any security of tenure from arising). Following the possession order, an attempt was made to secure alternative accommodation but this came to nothing. L also removed herself from the Leeds City Council priority housing list. It should be noted that, by this stage, it was clear that L, one of her daughters and her granddaughter, had a variety of physical and mental illnesses and disabilities.

In 1996, the Ministry of Defence reorganised the way in which it managed its property and undertook a sale and lease back agreement with Annington Homes. In October 1999, a decision was taken that L’s property was surplus to requirements and a fresh notice to quit was served. A warrant was then sought pursuant to the 1993 order but that was refused as it was held that there had been a fresh grant since 1993. A third notice to quit was then served in 2005.

Having resolved to seek possession, the MOD “recognised that there was a duty to consider if and how [it] could assist the defendant through the process of recovery of possession” and arranged meetings with Leeds. The upshot of those was that unless and until a possession order was granted, there was very little that could be done as regards re-housing. Possssion proceedings were issued in the Leeds county Court in June 2007. A defence and counterclaim was served in September 2007 which contended inter alia, that the decision to seek possession was unreasonable and unlawful so as to amount to a violation of Article 8.

s.49A Disability Discrimination Act 1995

L also sought to argue that s.49A Disability Discrimination Act 1995 gave her a defence in that no or no adequate regard had been had to her various health needs and disabilities. Collins J dismissed that point shortly, holding that “to suggest that section 49A enables someone who otherwise would fail to have any defence to a possession order… is to take that much too far.” (at [23]).

Article 8 and possession proceedings

His Lordship then turned to consider the law on Article 8 and possession proceedings. The law was, he observed “far from as clear as it should be” (at [24]). The position was:

(a) that public law defences based on the alleged irrationality of a decision to seek possession could be raised as a defence in the county court - Wandsworth LBC v Winder [1985] AC 461

(b) that Article 8 could not be relied upon to defeat a proprietary or contractual right to possession – Harrow BC v Qazi [2004] 1 AC 983

(c) that decision had been doubted by the decisions of the European Court of Human Rights in Connors v UK [2005] 40 EHRR 185 and Blecic v Croatia [2004] 41 EHRR 13, which had suggested that Article 8 might come into play in situations were the decision to evict was “manifestly without reasonable foundation” or “manifestly disproportionate”.

(d) the decision of the House of Lords in Kay v LB Lambeth [2006] 2 AC 465 had attempted to deal with these two ECtHR cases and had concluded that the right of a public authority landlord to enforce a claim for possession would, in most cases, automatically be justified under Art. 8(2). Parliament was entitled to strike the appropriate balance for Art. 8(2) purposes but, in an exceptional case, the defendant should be able to assert that the power to recover possession should not be used.

(e) in Doherty v Birmingham City Council [2008] 3 WLR 636, the House of Lords had concluded that, in order to raise an exceptional defence of the sort contemplated in Kay, the defendant would have to show that the decision to seek possession was Wednesbury unreasonable. (His Lordship was minded to agree with Lord Mance, in the minority in Doherty that, if the decision to evict would amount to a violation of a persons human rights, then the decision must be unreasonable, but his Lordship accepted that this argument was not open to him).

(f) in Doran v Liverpool City Council [2009] EWCA Civ 146, the Court of Appeal had held that any challenge must be to the decision to bring possession proceedings, not to the possession proceedings themselves. In this regard, the court’s powers of suspension were relevant.

The decision

In the present case, what was said was that it was irrational to bring the proceedings because of the lengthy period of occupation and the personal circumstances of the defendant and her children. However, there was no obligation on the claimant to make enquiries of this nature and, in any event, a personal disability could not afford a defence to possession proceedings. Moreover, whilst there had been an unacceptable delay in bringing the proceedings, the Ministry of Defence had adduced  evidence of the need to recover possession and make use of the property.

It would be a rare case where it truly was irrational to recover possession,given that most decisions to seek possession were only based on partial information known at the time (at [55}). In any event, the county court would be obliged by s.6(1) Human Rights Act 1998 to make a possession order in any event. The value to making factual findings was, however, that it would assist with deciding how long to suspend the order for (although, as this was a notice to quit case, the court was limited to 6 weeks). In addition, the decision to seek a warrant could be challenged (presumably by JR), relying on those findings of fact (at [56]).

However, his Lordship did accept that “there may be cases where it wold be incumbent upon the relevant authority to assist, insofar as they are able, in seeing that alternative accommodation would be provided” (at [49])

Where does that leave us?

His Lordship – rightly – criticised the decisions in Qazi, Kay and Doherty for failing to give any clear picture of the law, but does his Lordship’s judgment help any more? Why, for example, does he take the view that there may be a duty to assist with providing alternative accommodation? Is this part of an Article 8 duty or a freestanding public law duty? Why would it not be a defence to show that a decision to seek possession was Wednesbury unreasonable? Surely the whole point of Kay and Doherty is that it is a substantive defence? If it isn’t, then how on earth can the UK contend that domestic law ever complies with the procedural safeguards required in McCann v UK and Cosic v Croatia?

I’m also surprised that it was not argued that possession pursuant to a notice to quit violates Art. 8, following McCann and Cosic.

Finally – and I think this is quite a big one – it is wrong to say (as His Lordship does and as Doran did) that Kay, Doherty et al are authority for the proposition that a challenge to the decision to seek possession has to be framed as a Wednesbury unreasonableness challenge. The challenge can be on any of the grounds of public law, irrationality, illegality or procedural impropriety (see CCSU and “Doherty: The Facts of the Matter” Andrew Arden QC [2008] 11 JHL 98).

Wednesbury itself is not just about perversity but includes bad faith, dishonesty, failure to take into account relevant factors and the like. In Kay, Lord Brown expressly stated that Connors could been argued as an “unfairness” challenge in the domestic courts and in Doherty, Lord Hope makes clear that the challenges are not confined to Wednesbury grounds.

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O(L)ivers Army

Published
by
J
on 06/05/2009
in FLW case note, Housing law - All and Possession
. 2 Comments

Defence Estates v L and another, High Court (Administrative Court, Collins J, 5.5.09) [2009] All ER (D) 20 (May) is – potentially – quite an important case on the ongoing Qazi/Kay/Doherty/Connors/McCann/Cosic debate about the role of Article 8 in possession proceedings.

The only report of the judgement is from the All ER note, which isn’t a particularly well written document. Anyone involved in the case (Stephen Cottle – I’m looking at you) who wants to correct / add to what I’ve written here is more than welcome to contact the NL team.

L was married to an army officer. In 1999 L’s husband resigned from the army and, as an act of compassion, the army arranged for temporary accommodation for L, her two daughters and grandson (I’m unsure as to whether or not L was accommodated by the army prior to 1999).

In due course, Defence Estates (a company responsible for managing the MoD housing stock) informed L that it intended to seek possession. L appears to have approached the relevant local authority, made a Part 7 Housing Act 1996 application, but declined the property which was subsequently offered by the LA. A notice to quit was served and possession proceedings were issued. A possession order was (apparently) made, but the court refused to issue a warrant.

A further NTQ was served in November 2005. L argued that any possession order would violate her rights under Art 8. The claim was transfered into the Administrative Court where it was heard by Collins J (the lead Judge of the Administrative Court).

Mr Justice Collins granted a possession order. There was no obligation on the claimant to make enquiries as to the personal circumstances of L. It was clear that L was not entitled to remain in occupation forever. The claimant was obliged to assist in finding alternative accommodation and the LA had to carry out a lawful process under Part 7, Housing Act 1996. The needs of the MoD outweighed any rights that L might have under Art 8.

Apparently, his Lordship considered Qazi, Doherty and Doran. His reasoning will be worth looking at once it becomes available. Once that happens, we’ll do a more detailed post.

[Edit - 12.5.09 - the Garden Court Bulletin has a short, but slightly different, case report, availabe here]

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Public Law Defence – an arguable case

Published
by
NL
on 01/04/2009
in FLW case note, Housing law - All, Licences and occupiers and Possession
. 0 Comments

McGlynn v Welwyn Hatfield District Council [2009] EWCA Civ 285 was an appeal of a summary possession that had been stayed pending Doherty in the Lords.

Mr McGlynn was granted a non-secure tenancy by Welwyn in 2000, in pursuance of homelessness obligations under Part VII HA 1996. The tenancy was therefore terminable by Notice to Quit and Welwyn served NTQ in 2004 and possession proceedings in April 2005. Summary possession followed in December 2005, set aside on appeal to CJ in August 2006 on the basis that it was seriously arguable that the LA had exercised its powers improperly. At renewed hearing before a DJ, the Defendant argued that the Council had improperly exercised its powers in seeking the possession order (not in serving the NTQ, which was not challenged). The DJ found there was not a seriously arguable defence and made the possession order. The appeal was then to the Court of Appeal.

The appeal was thus primarily on the issue of whether Mr McGlynn had a seriously arguable defence on public law grounds.

Some brief factual context. There had been allegations of nuisance against the Defendant, from a sole source. This was the basis of the NTQ. Shortly after the NTQ, the Council wrote to Mr McGlynn’s drug caseworker, who had objected to the allegations, as follows:

We have received a number of complaints regarding visitors to Mr McGlynn’s property and also about his own behaviour. The complainant is aware that their evidence will be needed in court and they are willing to assist the council and have agreed to give evidence in court if needed. Should the council be required to apply for a Possession Hearing Mr McGlynn will have the opportunity to offer a defence, either personally or via a Solicitor, to the Court.

The Local Authority does not take action against a person’s tenancy unless they are satisfied that there has been a significant breach that has caused a nuisance or annoyance to other residents in the locality. The Local Authority also liaises closely with the Police in relation to complaints received and they have confirmed that they have received a number of calls regarding the anti-social behaviour caused by either Mr McGlynn and/or visitors to his property.

Mr McGlynn has a non-secure tenancy that can be brought to an end by serving a Notice to Quit. As a Notice to Quit was served on 28 April 2004, Mr McGlynn no longer holds a current tenancy with Welwyn Hatfield Council. However, we would need to apply to the Court for vacant possession of the property.

If we do not receive any further complaints of anti-social behaviour that can be linked to Mr McGlynn or his property we will consider granting him a further non-secure tenancy with an option to him being re-housed in a smaller property as requested. However, if the complaints continue, we will have no option but to continue with the legal action required to repossess 20 Kingscroft…

If you require any further information, please do not hesitate to contact me on the above number. I am, of course, willing to discuss any matter directly with Mr McGlynn.

The Council’s initial claim was expressly on the grounds of the original alleged nuisance and further complaints (also from the same sole source). Mr McGlynn had initially defended on the basis that the allegations weren’t true. After an adjourned hearing, the Council proceeded solely on the basis that an NTQ had been served and on this ground the initial possession order given. The appeal to the CJ, which was heard shortly after Kay v Lambeth in the Lords, was allowed on the basis that, given the Council’s letter, quoted above, it was seriously arguable that the Council had acted in a way no reasonable person would consider justifiable. The directions for re-hearing included one for the Council to serve further evidence to show why the Council was satisfied that the nuisance continued and to show how they had given the appellant an opportunity to make representations prior to the issue of the claim. No evidence on these points was forthcoming. Despite this the DJ made a PO at the rehearing of the claim, and refused to consider that Mr McGlynn had an arguable defence.

So to the Court of Appeal.

Jan Luba QC for Mr McGlynn requested that the grounds be amended to include a challenge to the lawfulness of the NTQ. This was refused as the point had not been raised at all below, where the lawfulness of the NTQ was admitted. He further requested an amendment to include argument that the procedure adopted by the Council failed to provide the necessary procedural safeguards of Mr McGlynn’s Art 8 rights – the McCann/Cosic line – albeit that this could only be argued if or when the case reached the Lords.

Aside from these requests, Mr McGlynn’s main argument was that this was a ‘gateway b’ challenge, not confined to wednesbury unreasonableness. The legislative schema was comparable to that in Kay and in Doherty, but distinct from that in Doran, as there was no possibility of suspending execution of the possession order, as in the latter.

The DJ in the rehearing had erred in law by failing to consider the Council’s letter (above) as a whole, which amounted to a statement of policy not to take possession action unless satisfied of breach of tenancy causing nuisance to others and stating that Mr McGlynn would have the opportunity to challenge such a conclusion. The Council may have answers to these points, but it had failed to produce them, despite the CJ’s direction. The appellant therefore did have a seriously arguable public law defence and the DJ was wrong to conclude otherwise.

The Council argued that a reasonable council was not required to conduct an investigation into the truth of allegations of nuisance before deciding that it was appropriate to bring proceedings. This would extend to non-secure tenants a security of tenure Parliament had chosen to exclude. The DJ was right was right in his decision. The Council had ample ground to believe that there were further breaches and the Defendant’s initial defence gave no grounds for seriously believing otherwise.

The Court of Appeal, in a sole judgment, held:

This was an unusual case. The Council’s letter contained a statement of policy that the Council did not take possession action unless satisfied of significant breach. Given the time between NTQ and issue of claim (about a year), it was arguable that a reasonable council would not have issued proceedings without being satisfied that there had been some further significant breach.

To be so satisfied did not require a quasi judicial investigation to be conducted, but the question before the Court was whether it was seriously arguable that the Council did not do enough to satisfy itself of significant further breach.

The further evidence presented by the Council after the appeal to the CJ, somewhat surprisingly, did not provide the information to support its assertion that it had done enough. There was no evidence of the minutes of any panel considering the decision to issue proceedings. there was no evidence of consideration of the further complaints – did they all come from a single person and had they ceased when that person was rehoused, as asserted by the Defendant? There was no evidence as to whether it was assumed by the Council that the possession proceedings would give Mr McGlynn the chance to answer the allegations (as they had issued on grounds of nuisance, not of summary possession based on NTQ).

On the basis of the paucity of evidence provided by the Council about the decisonmaking process, the DJ had clearly taken too narrow a view and was wrong to decide that the public law defence was not seriously arguable.

Appeal allowed. On that basis, there was no need for either of the amendments sought by Jan Luba QC.

Now this is indeed useful. Granted the Council’s letter is the ‘unusual’ element in this case – particularly as it is taken as setting out a policy that the Council failed to provide evidence that it had followed, but this also involves a bog-standard non-secure tenancy, NTQ and summary possession procedure.

The Council’s ’statement of policy’ and an apparent failure to follow it (or arguable failure) is taken by the Court of Appeal as an unproblematic gateway b matter, with a clearly arguable public law defence. The Court is untroubled by the Council’s argument that it is not required to conduct a quasi judicial inquiry, ‘consideration’ such that a reasonable council would be satisfied of a further breach is not taken to be the same level of inquiry and not an additional level of securoty of tenure above that given in statute. Useful material there.

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The Irish Doherty?

Published
by
NL
on 09/03/2009
in Housing law - All, Licences and occupiers and Possession
. 0 Comments

This is well outside our usual beat, not to say our jurisdiction, but in an interesting case, the Irish High Court in Dublin City Council v Gallagherr [2008] IEHC 354 has found, for a second time, that summary possession proceedings, infringed Art. 8 rights and made a declaration of incompatibility in regard to s.62 Housing Act 1966, despite the availability of judicial review. Hat-tip to Garden Court for pointing the case out.

S.62 provides for summary possession procedures for unauthorised occupiers of housing authorities, with no hearing of facts or reasonableness. Mr Gallagher had had has application to succeed to his late mother’s tenancy refused – the Council stating that he had not occupied and/or been ‘on the tenancy’ for the required two years prior to his mother’s death. This finding was disputed, but the Council served notice to quit and the Demand, and then began proceedings under s.62. The proceedings were defended on the basis that:

the entry into force of the European Convention on Human Rights Act 2003 (the Act of 2003) required the District Court to impose an evidentiary and fair procedures requirement on a housing authority seeking a warrant for the possession of a dwelling under s. 62 of the Act of 1966

The High Court was posed the following questions by the District Judge.

Was there an obligation under section 2 of the European Convention on Human Rights Act, 2003 [Irish equivalent of the HRA 1998] to interpret s.62 in a manner compatible with ECHR?

If yes, did the Court have the discretion to explore the merits of the matter and consider Convention rights in doing so.

If yes, did the Defendant have an entitlement to address the merits of the procedure and rely on Convention rights.

Is the effect of s.2 to require the housing authority to adduce evidence justifying the decision to seek possession.

The High Court considered Connors v UK and McCann v UK on the lack of procedural safeguard. But the submission that s.62 should be interpreted in a compatible manner failed. There was clear Irish precedent law in Dublin Corporation v. McDonnell [1946] Ir. Jur. Rep. 18. to say that defences to s.62 were limited to those available at law. In what English housing lawyer might regard as a a dark irony, the Court considered that it did not have the interpretative flexibility of an english court under the HRA:

there is a significant difference between s.2 of the Act of 2003 and s.3 of the U.K. Human Rights Act 1998. The difference is the inclusion in s.2 of the Act of 2003 of the phrase “subject to the rules of law relating to such interpretation”. A similar provision is not included in the s.3 (1) of the U.K. Act, which reads as follows;
“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights”
The consequences of this difference are important, because it means that in this jurisdiction a Court, when attempting to construe a law in a Convention compatible way, is still bound by the rules of law which heretofore have governed such interpretation, whereas in the U.K. no such restriction is imposed by Parliament. The range of manoeuvre available to a U.K. court, as illustrated in the above passages from the opinions of Lord Hope and Lord Steyn, is not available to an Irish Court.

So an Irish court could not overturn established case law on the basis of the 2003 Act.

A previous case, Leonard v. Dublin City Council and Others [2008] I.E.H.C. 79, had held that the absence of merits hearing under .s62 did not breach Art 6 or indeed Art 8 rights, given the availability of judicial review. But Connors and McCann held that the lack of procedural safeguards were an Art 8 issue and judicial review not sufficient. In Donegan v. Dublin City Council and Others [2008] I.E.H.C. 288, the issue was Art 8 and the lack of ability for the Court to consider disputed facts. A declaration of incompatibility was made:

the Court found that there was no adequate procedural safeguard built into s.62 of the Act of 1966 to allow a person to make a case on the merits before an independent tribunal that he or she was not in breach of the tenancy agreement. Accordingly, a declaration of incompatibility was made under s.5 of the Act of 2003 that s.62 of the Act of 1966 violated Article 8 of the Convention.

There was a comparable issue of disputed fact in this case. Judicial review would not suffice as a procedural safeguard as, even if the disputed issues of fact were resolved there would have to be a further determination of whether the decision to bring proceedings was proportionate, including the personal circumstances, the circumstances of the decision and the broader issues of ‘the Scheme for Priorities of Lettings’ for example. In view of that, if the Defendant had made a JR application

Even if successful in such an application, the process of judicial review would not have given him a hearing on the merits of his case against the complainant. It would, in all probability, have led to a decision by this Court to remit the matter back to the complainant so that a proper hearing on the relevant issues could be conducted.

The opportunity to have the matter merely remitted back to the housing authority for a further decision on the decided facts did not constitute a proper procedural safeguard for s.62 proceedings and did not address the proportionality of the interference with the Defendant’s Art 8 rights. Therefore a declaration of incompatibility of s.62 was made.

This is all interesting stuff. There are distinct similarities in statute and procedure to summary possession cases in England. English case law is considered – although not the line of cases from Kay v Lambeth to Doherty. But there are some key differences. In particular, there appears to be no form of public law defence to possession in the lower courts and no question of a Judicial Review dealing with the circumstances involved in the decision, including those beyond disputed fact. The upshot seems to be that the procedural failures condemned in Connors and McCann presented themselves in a more clear cut and defined manner than in the English situation after their Lordships had taken a few stabs at it.

But the different situation in Ireland does highlight the question in England of whether a public law defence can be said to be sufficient to fulfill the role of ‘procedural safeguard’ for Art 8 rights when proportionality of the housing authority’s decision is still excluded from consideration, post Doherty. No doubt we will be returning to this again before long.

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The difference in Doherty?

Published
by
NL
on 04/03/2009
in FLW case note, Housing law - All, Licences and occupiers and Possession
. 7 Comments

A Court of Appeal judgment expressly dealing with a post Doherty public law defence to termination of licence by Notice to Quit was handed down today. Doran v Liverpool City Council [2009] EWCA Civ 146 concerned a possession claim for a plot on a local authority travellers’ site.

Liverpool served Notice to Quit on the basis of alleged breach of licence conditions by ASB abd other breaches. The claim was defended on the basis that the allegations were denied or contested and that there was a public law defence to the decision to issue Notice to Quit. At County Court, summary judgment was granted, abeit that the judgment isn’t entirely clear on why the defence was rejected. Execution was stayed pending appeal.

At the Court of Appeal, the issue was whether the previous court of appeal judgment in Smith v Evans [2007] EWCA Civ 1318 (actually Smith v Buckland, but continually cited here as Evans) could be considered as still standing after the decisions in Doherty v Birmingham City Council [2008] UKHL 57 (our post on Doherty here).

Unlike Kay v Lambeth and Connors, both Smith v Evans and the present case involved proceedings brought after s.211 of the Housing Act 2004 came into effect, amending s.4 Caravan Sites Act 1968 to remove the exemption of local authorities from the court’s power to suspend execution of a possession order,. So although possession remained summary, execution could be suspended on terms and the terms later varied. It was common ground that Kay Gateway A – the incompatibility argument – was not engaged. The issue therefore was the extent and nature of the public law defence post-Doherty.

Smith v Evans (or Smith v Buckland) had found that ‘the public law defence is based on conventional public law grounds, that is to say that the decision to recover possession was so unreasonable that no reasonable public authority could have made it’ (Dyson LJ at para 40). Th Court in Smith also found that the amendment to s.4 Caravan Sites Act was significant as it meant no eviction without judicial scrutiny.

Here Mrs Doran, via Mr Berkley QC, argued that:

Gateway (b) had been widened in Doherty such that the personal circumstances and history of occupation of Mrs Doran were factors that should be considered both the the Council in deciding to issue an NTQ and by the Court in considering whether the Council’s decision was one that a reasonable person would consider justified. On the facts of Mrs Doran’s circumstances there was an arguable public law defence and the matter should be remitted to the County Court to hear the defence once the summary judgment was set aside. He also argued that there would be breaches of articles 6, 8 and/or 14 if the matter were not remitted.

For Liverpool, Mr Bartley Jones QC submitted that Doherty made no difference to the law in a case under the amended Caravans Act, as held in Smith v Evans. He also argued that the facts in Mrs Doran’s case did not give rise to an arguable defence.

The intervening Secretary of State for Communities and Local Government, by Mr Stilitz, supported the position of the council.

So the Court considered Doherty and the gateway (b) defence.

When the discussion was of the Caravan Sites Act prior to the Housing Act 2004 amendment (here called phase 1), Counsel for Liverpool, Mrs Doran and the intervening Secretary of State all agreed that Doherty had widened gateway (b), in a way that dismayed the court. In fact Counsel for Liverpool appeared to take the widest view: [para 46 Toulson LJ]

Mr Bartley Jones submitted that it gave rise to a new form of judicial review of uncertain dimensions, wider than judicial review as ordinarily understood but at the same time not extending to a full application of the Convention. Mr Stilitz for the Secretary of State submitted that the effect of the clarification and modification in Doherty was far more limited. It was a modest development in the elucidation of domestic public law principles. Mr Berkley took an intermediate position, submitting that the effect was less dramatic than was suggested by Mr Bartley Jones but more significant than was suggested by Mr Stilitz. Counsel were united in the view that the decision had created a new battleground area (to follow the analogy used by Lord Mance in Doherty at para 125) and predicted that there would inevitably be much argument about the scope of the modification of gateway (b) in future cases in the county court and on appeal. That is a bleak prospect. The last thing that will help councils or caravan dwellers is further complexity or uncertainty.

The Court of Appeal, in Toulson LJ’s sole judgment, finds a twofold effect in Doherty.

1. There is no formulaic restriction on the factors that may be relied upon in support of a gateway (b) public law defence. Factors are not automatically irrelevant because they include personal circumstances, like length of occupation, or any steps to provide an alternative taken by the Council. [para 49]

2. The question whether the Council’s decision was one that no reasonable person would have made is to be decided by applying public law principles as they have been developed at common law and not through the lens of the Convention (ECHR). [para 50]

These two principles are not in conflict and should be applied without further complexity.

But, common law principles are not frozen [para 52]:

Even before the enactment of the HRA, our public law principles were being influenced by Convention ways of thinking. Since its enactment, the process has gathered momentum. It is now a well recognised fact that the Convention is influencing the shape and development of our domestic public law principles, whether one uses the metaphors of embedding, weaving into the fabric, osmosis or alignment.

When it came to the amended Act (‘phase 2′), the parties’ positions differed further, with Liverpool and the SoS arguing that the matters to be taken into account in a gateway (b) challenge under phase 2 should be more restricted, on the basis that Doherty did not overrule Smith v Evans (or Buckland) and in any case Doherty only dealt with phase 1, leaving Kay as authority for phase 2. Toulson LJ gave that short shrift. All that was clarified and to some degree modified in Doherty was the range of factors to be taken into account in ‘conventional judicial review’, so no change to the principle in Kay. Besides, there was no justification for having a narrower range of factors for consideration in case after the amendment than before. It would just make things more complex.

However, the existence of the Court’s powers of suspension under s.4(A) would be a factor in considering whether the Council had acted in a manner no reasonable person would have done. The Court finds a parallel with introductory tenancies (also lasting a year) under Part V HA 1996 – this is a probationary period. So, a) the Council might seek possession on the basis that it will be suspended and b) the court has its own responsibility to decide on suspension or not. Any decision to serve an NTQ will be taken against that backdrop and with it scrutiny of the circumstances, making it less likely that the Council would lack any ground for deciding to serve the NTQ.

On the facts in the present case, there was no sustainable public law defence to the claim. it was unarguable that the council had acted in a manner that no reasonable Council would in serving an NTQ. The Council could not be expected to conduct a quasi judicial enquiry into exactly where the truth lay between allegation and counter allegation [para 56].

Mr Berkley’s argument that even if the decision was not unreasonable on the material known to the Council at the time, it could become retrospectively unreasonable for the court after full consideration of the evidence was also unsustainable in principle and on authority – Smith v Evans. There was nothing implicit in Doherty to suggest otherwise.

No convention arguments arose in the case. Gateway (a) was not argued and the observations in Doherty that a declaration of incompatibility for s.5 Mobile Homes Act 1983 would have been made save for the Housing & Regeneration Act didn’t lead anywhere in this case.

Appeal Dismissed. LJs Aiken and Jacobs concurred.

Toulson LJ gives practical guidance – this is mostly specific to possession claims under S.4 Caravan Sites Act as amended by Housing Act 2004 (‘phase 2′). The public law defence is characterised as facing ‘a high test rarely likely to be satisfied’ in these cases. The guidance is quoted below, but it is worth noting that this is specific to the situation where a one year (renewable) suspended possession order may be made.

For most summary possessions following NTQ no such discretion is available, so the observations noted above on ‘the legislative background’ providing something like a guarantor of the Council not being unreasonable don’t apply.

It is also worth noting the confirmation that the key decision for purposes of the public law defence is the decision to serve NTQ. There is no reason to hold that there are subsequent separate decision to issue the claim and to ask for a possession order [para 2].

Guidance by Toulson LJ

65. Where a local authority seeks possession after service of a notice to quit in a case arising under the legislative scheme, phase 2, there is seldom likely to be any dispute about the service of the notice to quit, and instances where the licensee has a genuinely arguable public law defence are also likely to be very rare. But cases where the court is asked to exercise its power of suspension under s4 of the Caravan Sites Act 1968 are likely to be much more common. It would be sensible if the directions given in such cases required the defendant to set out in writing all matters relied upon in support of such a suspension, and for the council, if it intends to oppose the application, to respond by setting out its grounds of opposition. It would also be sensible to order an exchange of witness statements on that issue. In the rare case where the licensee advances a public law defence to the claim, as well as invoking the court’s statutory power of suspension, it is unlikely to be a sensible use of the court’s time to conduct a hearing to decide whether the matters relied on by the licensee give rise to an arguable public law defence, when the same matters are going to have to be investigated in any event on the question of suspension. It will make better sense for the court to hear the evidence and if, at the end of it, there remains a live issue as to the lawfulness of the notice to quit, for the court to give a judgment dealing both with that issue and (if the defence is unsuccessful) with the question of suspension. That was not the course taken in this case. If it had been, there would have been a considerable saving of time and costs.

66. Conscious of the undesirability of judges in the county court having to read through lengthy appellate decisions when dealing with a claim for possession by a local authority of a pitch falling within the Caravan Sites Act 1968, it may help if I seek to summarise the position shortly.

67. In a case arising out of phase 2 of the legislative scheme, where notice to quit has been served, but the occupier asserts that the decision to serve it and seek possession was unlawful, it is for the licensee to make good such a defence. To do so, it must be shown that the council’s decision to serve the notice and seek possession was one which no reasonable council would have taken in the circumstances known, or which ought to have been known, to it at the time of the decision. This is a high test and rarely likely to be satisfied where the decision was made in good faith (for reasons more fully discussed in Smith v Evans and above).
The exercise of the court’s jurisdiction under s4 to suspend a possession order involves a much wider consideration of what would be just. Here the court is not simply reviewing the decision of the council which began the eviction process, but is forming its own judgment about whether a possession order should be suspended and, if so, for how long and on what conditions. It is required under the terms of the section to take into account the behaviour of the occupier and what attempts he or she has made to obtain alternative accommodation. Those factors are not exclusive. The court must itself be mindful of the occupier’s article 8 rights, which will need to be balanced against any other relevant considerations, such as the need to preserve public order, the interests of other residents and the need for safe and proper administration of such sites. (For example, it cannot reasonably be expected that council staff should have to spend time repeatedly sorting out disputes about disruptive or antisocial behaviour.) Article 8 rights are important but are not the same as security of tenure.

68. When phase 3 of the legislative scheme comes into force, the occupier will have a greater degree of contractual security by virtue of the Mobile Homes Act 1983. Broadly speaking, any right of termination by the owner will be conditional on the court considering it reasonable for the agreement to be terminated. That protection will be separate from the power of the court to suspend a possession order under s4 of the Caravan Sites Act 1968.

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Evictions and Proportionality

Published
by
chief
on 09/02/2009
in FLW case note, Housing law - All and Possession
. 1 Comment

We’re a bit late with this one, and it is arguably quite a biggie (hat tip to Niki Goss who first pointed it out, to me at least, in the comments here).

Anyway, Cosic v Croatia is a decision of the European Court of Human Rights that should be of interest as both Connors and McCann are referred to as the Court reaches its conclusion that a possession order was a disproportionate interference with the Applicant’s Art 8 rights, because she was not given the possibility of having the proportionality and reasonableness of it tested.  In the process the Court gives what might be construed as “guidance” to the House of Lords.

Mrs Ćosić began working as a teacher in Croatia in 1966.  In 1970 she gave birth to a son.  As a single mother she was granted a specially protected tenancy.  In 1984 she was transferred to a school in a different town.  The new school provided her with a flat that the school had temporarily leased from the Yugoslav People’s Army.  This lease expired in 1990.  In 1991 the State took control of all of the YPA’s property and became the new owner of the flat.  Several requests by the school to have the lease extended were ignored.  However, Mrs Ćosić remained living in the flat and paid rent to the State each month.  This arrangement seemed to be working fine until 1999 when the State brought a civil action seeking her eviction.  In 2002 the Municipal Court, while noting her “unenviable position” (i.e. she had nowhere else to go), ordered Mrs Ćosić to leave the flat within 15 days.  She then went to the ECtHR arguing breaches of Arts 8, 6 and 14.  While her Arts 6 and 14 claims were declared inadmissible, she had greater success with the Art 8 claim.

The ECtHR quickly dismissed Croatia’s argument that there hadn’t been any interference with Mrs Ćosić’s rights because the eviction judgment had not yet been acted on [18].  The Court accepted that the interference was in accordance with Croatia’s domestic law and that it pursued a legitimate aim of protecting the rights of the owner of the property.

The question then became whether the interference was proportionate and necessary in a democratic society.  After setting out [81]-[83] of Connors v UK, the Court then noted that the domestic court had not considered the proportionality of the action being taken.  It then said, at [21] (emphasis added):

[T]he guarantees of the Convention require that the interference with an applicant’s right to respect for her home be not only based on the law but also be proportionate under paragraph 2 of Article 8 to the legitimate aim pursued, regard being had to the particular circumstances of the case.

At [22] the Court echoed McCann (although note the slight difference in wording):

In this connection the Court reiterates that the loss of one’s home is a most extreme form of interference with the right to respect for the home. Any person at risk of an interference of this magnitude should in principle be able to have the proportionality and reasonableness of the measure determined by an independent tribunal in the light of the relevant principles under Article 8 of the Convention, notwithstanding that, under domestic law, his or her right of occupation has come to an end.

Due to the absence of adequate procedural safeguards Mrs Ćosić’s Art 8 rights had been breached and she was awarded 2,000 Euro for non-pecuniary damages.

While there is little here from the ECtHR that is new, it is surely significant that, so soon after the House of Lords decision in Doherty, the Court has repeated in clear terms that Art 8 requires the proportionality of a possession claim to be tested, having regard to the personal circumstances of someone who is at risk of losing their home.  As the ECtHR has made clear previously, judicial review just doesn’t cut it.  I’ll leave you to consider what this might mean for mandatory grounds of possession.

The net result?  Surely there now has to be either a legislative solution or a seven-strong House of Lords decision to sort this all out.  Doesn’t there?

Selected previous posts on Article 8 and possession:

  1. Human rights and possession claims after Kay v Lambeth
  2. Possession and human rights (McCann)
  3. Wondering about McCann
  4. Notes on Doherty v Birmingham CC
  5. Second time around (Truro Diocesan Board of Finance v Foley)
  6. A post-Doherty appeal
  7. Ask and ye shall receive (Dixon v Wandsworth LBC)
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Ask and ye shall receive

Published
by
J
on 27/01/2009
in ASB, FLW case note, Housing law - All, Licences and occupiers, Possession and secure-tenancy
. 14 Comments

Yesterday evening I asked for more information about Dixon v Wandsworth LBC (No 2) [2009] EWHC 27 (Admin) and, by the next morning, two copies of the transcript had made their way to my inbox. My gratitude to The Chief and to William Flack of Flack & Co, who are acting for Mr Dixon. Without wanting to get too carried away, this looks like it could be a significant case and I’m going to deal with it in some detail.

The facts

In April 1993 Mr Dixon (then aged 17) and his sister became the joint secure tenants of Wandsworth at a 2 bed flat in SW11. In October 2005, the sister served a Notice to Quit on the claimant, with the result that the joint tenancy came to an end – see LB Hammersmith & Fulham v Monk [1992] 1 AC 478.

Wandsworth then appeared to have considered re-housing Mr Dixon in his own 1 bed flat. That offer was withdrawn after Mr Dixon was cautioned for possession of cannabis and convicted of possession of cocaine. Possession proceedings were then issued, seeking recovery of the 2 bed flat. Those proceedings were expressly pleaded on the basis of the NTQ served by the sister and a possession order was granted.

The first set of proceedings

After the possession order was made, but before it was executed, Mr Dixon applied for further housing from Wandsworth under Part 6 Housing Act 1996, but was told that, because of inter alia his drug conviction, he was now treated as ineligible for social housing – see s.160A(7), Housing Act 1996. He challenged that decision by way of judicial review but was unsuccessful. See Dixon v LB Wandsworth (No 1) [2007] EWHC 3075 (Admin). The Court of Appeal refused permission to appeal, both on the papers and after an oral application.

These proceedings

Mr Dixon then applied to set aside the warrant of possession, contending that, were it to be executed, it would amount to a violation of his rights under Art. 8, ECHR. By consent, the application was transferred from the Wandsworth County Court to the High Court.

The law – according to the High Court

Before dealing in any substance with the arguments of the parties, the High Court set out what it regarded as the law.

The starting point was that a Notice to Quit given by one joint tenant would have the effect of terminating the tenancy, regardless of whether or not the other joint tenant(s) supported that move. This had been settled law since Doe d. Aslin v Summersett (1830) 1 B&AD 135 and had been confirmed in LB Hammersmith & Fulham v Monk [1992] 1 AC 478.

That rule of law had not, however, developed with any consideration of the rights of the parties under Article 8. In Qazi v LB Harrow [2004] 1 AC 983, the House of Lords had directly confronted this point and had concluded that Article 8 could not be used to defeat a private law contractual and proprietary right to possession. There was no infringement of Article 8 in recovering possession pursuant to a Notice to Quit.

That position had been further explained by Kay v LB Lambeth; Price v Leeds CC [2006] UKHL 10. One of the points in that appeal had been whether or not Qazi (and Monk) needed to be reconsidered in light of the decision of the European Court of Human Rights in Connors v UK 40 EHRR 189. Qazi was explained as meaning that, although Article 8 was engaged, domestic law would supply sufficient justification for the purposes of Article 8(2) in most cases.

There were, in effect, two gateways. Gateway A was a challenge to the underlying legislation such that it either had to be reinterpreted so as to comply with the requirements of the Human Rights Act 1998 (or a declaration of incompatibility granted) and Gateway B was a challenge, on judicial review grounds, to the decision to seek possession. Challenges could not be taken on the basis of individual personal circumstances.

In Doherty v Birmingham CC [2008] 3 WLR 636, Kay was revisited but not overruled. An unqualified right to possession could be challenged if the decision to seek possession was one that no reasonable person would consider justifiable.

The ‘new’ factor in the present case was the decision of the European Court of Human Rights in McCann v UK 19009/04. The European Court had found that possession proceedings predicated on an unqualified right to possession were in accordance with the law and pursued legitimate aims. However, they could not be said to be proportionate or necessary in a democratic society. Article 8(2) required an individual assessment of the eviction by a court and could not be met by a blanket presumption that domestic law had struck the correct balance.

That was the critical point of difference between the House of Lords and the European Court. The House had received written submissions on McCann before deciding Doherty and had concluded that it was not open to them to permit individual circumstances to stand as a free-standing defence. Judicial review-style defences were the only ones permissible.

The decision: Gateway A

When considering the compatibility of the rule in Monk with Article 8, McCann was of limited assistance. McCann had involved a local authority improperly procuring a Notice to Quit, whilst, in the present case, the Notice to Quit had been given freely by a private individual. All Wandsworth were doing was exercising their common law rights, as a result of the service of the notice.

It was not open to Mr Dixon to contend that the rule in Monk was incompatible with Article 8. That issue had been decided, against Mr Dixon, in Qazi. It was unclear what sort of modification Mr Dixon would want made to the rule in Monk. Why should an unwilling tenant be forced to remain in a joint tenancy against their will? Would the new rule apply equally to the public and private sector?

McCann was, at best, merely a persuasive authority. It had been doubted in the House of Lords and was factually distinguishable from the present case. There was no basis for contending that the rule in Monk was incompatible with Article 8.

The decision: Gateway B

Any challenge under Gateway B had to be on the basis that no reasonable person would consider the decision to seek possession justifiable. Although some of their Lordships in Doherty had suggested that this might need to be widened, none had actually done so.

The Court was not to substitute its own view of the proportionality of the eviction. Whilst there was no evidence to show that Wandsworth had carried out any proportionality assessment, the totality of the evidence was such that, had the assessment been carried out, Wandsworth could properly have concluded that it should seek possession.

What to make of this

I have some sympathy for the Judge, but this is a decision which side-steps the major issue. It was the ratio of McCann which mattered, not the facts. If, as the European Court held in McCann, a right to possession which does not afford a court the opportunity to examine the proportionality of that eviction is incompatible with Article 8, then surely all mandatory grounds (NTQ, s.21, Housing Act 1988, Ground 8, Housing Act 1988 etc) are incompatible with Article 8.

The House of Lords does not accept this premise and does not agree that an individual examination of the proportionality of the eviction is necessary, but has not yet properly said so. McCann and Connors cannot stand with Qazi, Kay and Doherty and, at some stage, their Lordships are going to have to bite the bullet and decide what to do about this.

I am less sympathetic however to his treatment of the proportionality question under Gateway B. On the one hand we’re told that a court cannot simply come to its own conclusion on proportionality, but on the other, the court decides that, if Wandsworth had ever done such an assessment, they would have been entitled to decide that they should proceed. Surely the landlord should do a proportionality assessment before each and every eviction. Permission to appeal has been sought on this point.

Finally, I’m not entirely convinced that this decision is compatible with Hillingdon v Collins & Another [2008] EWHC 3016 (Admin), discussed by us here. I’ll need some more time to reflect on that though, but, if there is even a slight difference, surely the Court of Appeal should grant permission… is it too much to hope that the Court of Appeal might then explain what Doherty actually means in practice?

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Desperately Seeking Dixon

Published
by
J
on 26/01/2009
in ASB, Housing law - All, Possession and secure-tenancy
. 5 Comments

Garden Court chambers have a note of a case called Dixon v Wandsworth LBC [2009] EWHC (Admin) 27. It isn’t on Bailii, Lawtel or Casetrack. I know that some Garden Court people read this blog and if anyone has more information about it (or a transcript) please let us know.

Mr Dixon and his sister were joint secure tenants of LB Wandsworth. His sister gave NTQ and left the property. LB Wandsworth then obtained a possession order. Mr Dixon applied to set aside the order or to prevent execution of the warrant on the basis that the rule in LB Hammersmith & Fulham v Monk [1992] 1 AC 478 violated his rights under Art. 8, ECHR.

The High Court rejected the application. There was no need to reconsider the decision in Monk and, in any event, the decision of the council was reasonable and proportionate.

As I say – anyone with more information should feel free to contact us.

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