We’ve been told that Ali & Ibrahim v Birmingham City Council (now Ali, Ibrahim and Tomlinson v BCC) was heard in the Supreme Court today, 23 November, and continues tomorrow. Our report on the Court of Appeal judgment ([2008] EWCA 1228) is here. The issue is whether Housing Act 1996 s.202 reviews are Article 6 compliant. Judgment now awaited – this should be significant, either way.
Tag Archive for 'human rights act'
It’s a bit like one of those nights that just, you know, didn’t work out. You remember, it was all very slow, not really gratifying and, in the end, disappointingly inconclusive.
The Government has released its response [link to PDF] to the Parliamentary Joint Committee on Human Rights report of 2007. Yes, 2007. The report that was released prior to the Lords judgment in YL v Birmingham City Council and the changed law in respect of care homes providing Local Authority contracted services in Health and Social Care Act 2008.
So, the Government notes the concerns that the Courts’ approach to what constitutes a public function for the purposes of the HRA is apparently too much guided by judicial review precedent and not enough focused on a ‘functional approach’ to the definition. It had followed the 2004 report’s recommendations that it should intervene in a suitable case to put this view and intervened in YL.
Now, the Government takes the view that having intervened in YL, unsuccessfully, and changed the law on care homes, what more can it really be asked to do. Yes, it is a bit disappointed too, but it cleared up the specific YL mess didn’t it? Isn’t that enough?
On the view that it isn’t really enough, because YL still covers all those other contracted out provision situations apart from the specific care home one, the Government takes the view that, well, yeah, whatever… At least YL clarified the law, apart from the specific situation it decided upon, where we changed the law.
On housing, at para 72:
There is no evidence that Parliament gave any considered view during the passage of the Human Rights Bill as to whether the provision of social housing is a function of a public nature. The Government’s view at this time is that the provision of housing by a landlord is not inherently a function of a public nature, even though a local authority can also arrange for the provision of housing. One needs instead to consider in the round the features of the function of providing social housing. On this basis, the Government’s view is that the balance of these features indicate that it is not a function of a public nature. To reach this conclusion based on this reasoning is not at all incompatible with the position that the Government has consistently taken on the interpretation of section 6 of the Human Rights Act, including before the House of Lords in the YL case.
But what of Weaver v L&Q, you might ask? The only mention is at para 100. Here it is:
Furthermore, the Government is considering the recent judgment of the Court of Appeal in R (Weaver) v London & Quadrant Housing Trust, which may be heard in due course by the Supreme Court. The Government nevertheless remains firmly committed to consulting on this issue.
So, they are considering and consulting while at the same time having the view that ‘the function of providing social housing [...] is not a function of a public nature’.
There is more, of course, but largely more of the same, so forgive me for not going into detail.
What is not at all clear, but definitely a question arising is if Weaver v L&Q does go to the Supreme Court, will HMG be intervening? And if so, in which way?
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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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Another case on post-Doherty public law defences was handed down on Friday. Stokes v London Borough of Brent [2009] EWHC 1426 (QB) concerned an appeal summary possession order made against a traveller in unlicenced occupation of a plot on a Brent traveller’s site.
Ms Stokes had lived at her mother’s plot on the site and had been on the waiting list. She moved onto a plot which contained a site office on part of it, but was not used as a caravan site, in about January 2007. In April 2007 Brent wrote to say that her trespass would not be tolerated. However, in October 2007, Brent wrote to say that she was trespassing, but in view of the birth of her fourth child, her occupation would be tolerated for 3 months. In April 2008, Brent wrote that her occupation was no longer tolerated and possession would be required in 3 weeks. A couple of weeks later in May 2008 possession proceedings were issued. Ms Stokes filed a public law defence, and an Article 8 defence. The court below found there was no defence with a seriously arguable prospect of success and made a summary possession order.
Ms Stokes appealed, arguing that:
The Judge had failed to take into account personal circumstances:
- That she had lived on the site almost all her life;
- She had nowhere else to station the caravan lawfully and were homeless for the purposes of Housing Act 1996;
- Brent had not offered suitable alternative accommodation;
- An offer of another pitch was unsuitable due to dispute between two groups of residents (although Brent had not been informed of this reason for refusal prior to beginning proceedings);
- Ms Stokes’ children had disabilities which had not been addressed by Brent;
- The occupation had not caused a nuisance to others;
- The decision to seek possession was solely on Brent’s desire to expand the office space, rather than accommodate others, but no good reason had been made for expanding the office space.
Also, Brent had failed to
- Take all reasonable steps to search for an alternative site;
- Search for other temporary sites;
- Have regard to the guidance in Circular 18/94.
The judge below had failed to give adequate reasons for dismissing the defence.
In addition, Ms Stokes argued Article 8.
The appeal was made before the House of Lords judgment in Doherty was handed down and was amended as a result. After hearing but before judgment, Doran v Liverpool was handed down by the Court of Appeal. So the judgment was in some ways a moving target.
Mr Justice King held:
1. The decision that must be considered is the decision of the authority to seek possession on the basis of the facts available to it at that time, not that have subsequently emerged.
2. This is a public law issue. Doherty makes no difference to Kay or Qazi on the availability of a human rights defence (unless ‘gateway A’ incompatibility).
3.The issue is whether a public law defence is ’seriously arguable’, not just arguable.
4. Even taking the expanded sense of what can be raised in a public law defence, via Doherty (and Doran), this was not a (Kay) exceptional case. Unlike Connors or Kay, Ms Stokes had not lawfully lived on the pitch for a number of years. Eviction was sought after another pitch had been offered but refused, with no reason given at the time. It would be bad law to decide that the eviction would only be erited if it ws to accommodate another family.
5. The duty to offer suitable alternative accommodation was aHousing Act 1996 Part VII issue and not relevant to the present proceedings. Submissions on this issue sounded in part like a premature challenge to a homeless decision. R(McCarthy) v Basildon DC [2008] EWHC 987 (Admin) distinguished on the basis of factual differences. There was nothing to suggest that Brent was not fully aware when it wrote the letter ending the ‘tolerated’ occupation that a homeless application might be made. The letter advised on making such an application. [In any event, R(McCarthy) was overturned on appeal.]
6. While the judgment below was cursory in parts, the judge had correctly addressed himself as to the ’seriously arguable’ point and clearly had in mind all the pleaded circumstances in finding that there was no evidence to suggest a prima facie case that the Authority had failed in its duties. Additionally, the appellant had failed to establish that the court below was wrong on the seriously arguable point.
7. The argument that the Authority had failed to fulfill its statutory duty by taking into account relevant considerations fell in the same way. There had to be some evidence that the Authority had not complied with the duties, or relevant considerations ignored. Otherwise, it was simply an attempt to reverse the burden of proof onto the Claimant. A seriously arguable case cannot be made out simply by assertion of potentially material failures.
8. The appellant’s related point on procedural unfairness by failing to give directions on disclosure – where disclosure would have been ordered in a judicial review – did not stand. This was not, unlike the subject of a judicial review, a decision for which the decision maker was obliged to give reasons. The Judicial Review Protocol is not supposed to be method of pre-action fact finding or obligatory disclosure. There is no requirement to give reasons in a possession claim, and, even in a judicial review, it would be for the applicant to demonstrate the improper exercise of powers by the authority. There may be exceptional cases where the failure to give reasons may give rise to the inference of the improper use of powers, e.g. where the circumstances are such that the decision appears to be one that no reasonable person would consider justifiable. This was not such a case.
Appeal dismissed.
Comment
As well as the view on Doherty, which is broadly in line with the limiting decisions in Doran, Central Bedfordshire v Taylor and McGlynn v Hatfield, and also follows the suggestion that period of occupation is the key ‘personal circumstance’, there is an important issue here on evidence of failure to take into account relevant considerations. At such an early stage in possession proceedings, this can, of course, be very hard to evidence. Often, all there is a lack of any indication that the matters have been considered. What this judgment suggests is that this may well not be enough. But the Court asking for positive evidence of the failure, while restricting or denying any access to disclosure orders, puts the Defendant in a very difficult position indeed. (That is unless she or he has been lucky enough to receive a letter from the authority stating ‘we have wilfully and without good reason failed to consider X’, which is, on the whole, rare).
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Well, well, well. Or perhaps well, well, oh heck. The Court of Appeal has handed down its judgment in R (Weaver) v London & Quadrant Housing Trust [2009] EWCA Civ 587 and, by a majority, L&Q have lost.
It will be remembered that Mrs Weaver was a tenant of L&Q. L&Q sought to evict her, relying on Ground 8. She resisted this, claiming that she had a legitimate expectation that they would use Grounds 10 or 11 first and that the eviction engaged Article 8 of the European Convention of Human Rights. The High Court rejected any suggestion of a legitimate expectation. Because of the way that it was advanced the Article 8 claim fell as well, but the Divisional Court went on to decide that L&Q was a hybrid public authority for the purposes of the HRA and it was amenable to judicial review. The Divisional Court did this through an Order, so that L&Q could appeal this finding. There is a palpable sense of irritation in the Court of Appeal with the way that this litigation has panned out; see Elias LJ at [6], Lord Collins at [87]-[91] and Rix LJ at [104]-[115]. There was also some criticism of the Divisional Court for focusing on the wrong question; see [53]-[57] and [114].
Let’s start with Elias LJ’s lead judgment, then Lord Collin’s concurring judgment, before considering Rix LJ’s dissent.
Social Housing
Elias LJ first outlined the role of RSLs in social housing. In brief:
- It is Government policy to provide social housing [8].
- RSLs were regulated by the Housing Corporation [9].
- RSLs are subject to detailed housing management guidance, which is approved by the Secretary of State [10].
- Ss 8-10 of the Housing Act 1996 impose further regulation on RSLs [11].
- RSLs are subsidised by public funds through Housing Corpn grants [12].
- They have an important role in assisting LAs to carry out their statutory housing policies; this is not simply through choice, but through legislation [13].
- Many LA properties are being transferred to RSLs [14].
- Certain statutory powers are bestowed on RSLs, eg in relation to anti-social behaviour [16].
He then went on to some identifying features of L&Q, such as its charitable status, the origins of some of its housing stock, and the source of some of its funding.
Human Rights Act
The crucial battleground is s. 6 of the HRA. The relevant subsections are:
(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
…
(3) In this section “public authority” includes—
…
(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.
…
(5) In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private.
Elias LJ then moved on at [30]-[40] to the existing case law on the HRA: Aston Cantlow v Wallbank [2003] UKHL 37 and YL v Birmingham City Council [2007] UKHL 27. He also noted Poplar Housing and Regeneration Community Association Ltd v Donoghue [2002] QB 48. At [41] Elias LJ concluded his journey through the authorities:
I would draw these tentative propositions from this analysis. First, the source of the power will be a relevant factor in determining whether the act in question is in the nature of a private act or not. Second, that will not be decisive, however, since the nature of the activities in issue in the proceedings is also important. This leads on to the third and related proposition, which is that the character of an act is likely to take its colour from the character of the function of which it forms part.
Elias LJ characterised the essential question as “whether the act of terminating the tenancy is a private act”, but this must be done by considering the “context in which the act occurs; the act cannot be considered in isolation” [66]. This, and the third of Elias LJ’s propositions above must be right.
At [68]-[72] Elias LJ finds that L&Q’s function of allocating and managing housing is of a public nature. There is significant reliance on public funding; L&Q operates in very close harmony with local government, although it does not directly take its place; the provision of subsidised housing, as opposed to the provision of housing itself, is a function which can properly be described as governmental; L&Q acts in the public interest and has charitable objectives; and it is subject to intrusive regulation on allocation and management, not just regulation designed to ensure transparency or proper standards of performance.
This still leaves the central question of whether the termination, involving the exercise of a contractual power, is solely a private act. At [73] Elias LJ acknowledges that there are observations in YL and Aston Cantlow that would appear to suggest it was. However, at [76] he says:
In my judgment, the act of termination is so bound up with the provision of social housing that once the latter is seen, in the context of this particular body, as the exercise of a public function, then acts which are necessarily involved in the regulation of the function must also be public acts. The grant of a tenancy and its subsequent termination are part and parcel of determining who should be allowed to take advantage of this public benefit. This is not an act which is purely incidental or supplementary to the principal function, such as contracting out the cleaning of the windows of the Trust’s properties. That could readily be seen as a private function of a kind carried on by both public and private bodies. No doubt the termination of such a contract would be a private act (unless the body were a core public authority.)
At [80] he moves on to consider whether HRA protection should extend to all L&Q tenants in social housing, or only those in properties acquired as a result of state grants. Elias LJ thinks that it should be the former: “The effect of the grant is not merely to assist the Trust (and other RSLs similarly placed) in being able to provide low cost housing to the tenants in the properties acquired by the grant; it necessarily has a wider impact, and bears upon its ability to provide social housing generally.” However, the HRA will not extend to those tenants who are not in social housing, but are paying market rents [81]-[82]. Elias LJ says that this is not the equivalent of the possible unattractive consequences of YL; “it merely mirrors the current distinction between those housed in local authority accommodation, who do have human rights protection with respect to evictions, and those housed in the private sector who do not”.
Elias LJ holds, as the Divisional Court did, that this all means that L&Q is subject to JR, as L&Q did not seek to argue otherwise.
Finally, and crucially, he points out that this judgment does not mean that every RSL will be in the same position as L&Q:
For example, a potentially important difference is that apparently some RSLs have not received any public subsidy at all, and arguably – and I put it no higher than that – their position could be different. ([84])
Support
Lord Collins broadly agrees with Elias LJ. He points out that the added protection may not be worth all that much to tenants in the light of Kay. At [100] Lord Collins goes further than Elias LJ and says that “It is not easy to envisage circumstances where an act could be of a public nature where it is not done in pursuance … of public functions”.
Dissent
Where it all gets really interesting is Rix LJ’s dissenting view. At [116] he turns to consider the effects of the jurisprudence of the European Court of Human Rights. He records that the asked Counsel what the Strasbourg court had said about non-governmental providers of social housing, but was told that there were no relevant cases.
Rix LJ goes on to consider R v Servite Houses ex p Goldsmith (2001) 33 HLR 35 and Poplar in a bit more detail, before providing his own analysis of Aston Cantlow and YL. He then noted (at [146]) that in R (Ahmad) v Newham [2009] UKHL 12 Baroness Hale emphasised that the provision of housing is not a government function.
At [147] he then concludes that he did not consider L&Q’s “decision to terminate Mrs Weaver’s tenancy by seeking possession from the court on mandatory ground 8 justified by her non-payment of rent is properly to be categorised as the exercise of a function of a public nature rather than a private act arising out of contract.” Rix LJ relied on ten factors:
- Strasbourg jurisprudence did not support the contrary conclusion [148].
- He can find no support in Servite, Aston Cantlow, Poplar or YL [149].
- Arguments in the instant case had been inappropriately influenced by the structure of the dispute in YL. There had been too much focus on s.6(3)(b) and not enough on s.6(5) [150].
- He is distinctly unhappy about viewing “management and allocation” as an all-embracing public function, that includes termination – “the acceptance that management of social housing is essentially a single integrated function of a public nature is most unlikely to be correct” [151].
- It does not follow that termination is automatically a public function simply because allocation is [152].
- There is nothing special about the regulation that covers social housing; large parts of commercial life are covered by regulation [154].
- There is nothing about the nature of L&Q, or the typical RSL, to suggest that the everyday administration of tenancy agreements is a function of a public nature. L&Q is a charity, with independent corporate status, an independent board, and owned by private shareholders. Indeed, ”the world of charity is essentially private” [155].
- The main sources of capital finances are private lenders and house sales [156]. While public subsidy is an important factor in the overall assessment, such matters are relative. Public finance is an element in the equation, but Rix LJ would be sceptical about allowing it to play a dominant role in the assessment [157].
- In YL, Lord Neuberger had said that the competing views about policy made it a neutral factor. Rix LJ would add to Lord Neuberger’s policy arguments for not viewing a function as one of a public nature a further argument; namely that the experience and efficiency of the private sector may be to the public benefit [158].
- Public welfare concerns for those in need of social housing can be addressed in a variety of ways; it is unnecessary to artificially classify private contractual decisions as being of a public nature to address these public welfare concerns [159].
Rix LJ takes issue with the Divisional Court’s declaration for not being clear that it is L&Q’s social housing that is at issue [151]. To the extent that L&Q has some non-social housing then this is a fair criticism, but it seems clear that the reference in the declaration should be taken to be a reference to the management and allocation of social housing stock. It is not clear that the existence of market rent properties owned by L&Q was even put to the Divisional Court. If it wasn’t then the word “social” would have been superfluous anyway. Rix LJ suggests later on in the same paragraph that some 36% of L&Q’s properties are outside of the sphere of social housing, but it seems to me that this conclusion does not necessarily follow from the facts. Just because in a given year some 64% of L&Q’s new lettings were the result of LA nominations [24] does not, for me, mean that all of the remaining 36% are necessarily not social housing.
Preliminary Comments
There is a lot to deal with here and what follows is simply my initial thoughts, so all comments welcome.
It’s probably clear that I prefer the reasoning of the majority, but I still think that there is a lot of value in Rix LJ’s dissenting judgment. I suspect that his could be an important view as this debate rolls on.
As was suggested in the write-up of the original judgment this case still leaves room for individual RSLs to argue that they are in some way distinct from L&Q and don’t therefore quite cross the threshold to be considered as carrying out public functions. That will presumably be argued a lot in the ensuring JR and HRA claims against RSLs.
Elias LJ’s conclusion at [80] that this should cover all of L&Q’s social tenants has to be right. To hold otherwise would draw an unnatural, and difficult to identify, distinction.
There is, understandably, a lot of reliance on YL. That’s as it should be. Just because I think that YL was wrongly decided, doesn’t mean that precedent should be abandoned. What surprises me is that there is no mention of the fact that the Health and Social Care Act 2008 has reversed the result of YL. Clearly s. 145 of that Act does not change the test in respect of s. 6 HRA; that work appears to be on the back-burner for the time being, although a consultation is still rumoured before the end of the year. But what, at least in my opinion, s. 145 does do is demonstrate that the executive and the legislature have shown that the result that the House of Lords came to in applying the facts of YL to the test was wrong. Public policy dictates that providing accommodation, together with care, in a care home is a function of a public nature. Legislation now explicitly says that because the courts failed to realise it.
I’ve said above that I agree with Elias LJ at [41] and [66], but to the extent that Elias LJ and Lord Collins differ I prefer Lord Collins’ view – see [100].
I’m also not sure about Rix LJ’s point on charitable status in [155]. I merely pose as a thought whether the presence of the Charity Commission as a regulator should influence this. I’m not sure of the answer, but the Charity Commission was not considered in YL or Heather, other than in a fleeting reference in Heather as to whether the proceedings required their permission.
Lying beneath all of this is still seems to be the same arguments of public policy that have exercised the courts when considering s. 6 right from the start. That perhaps is a debate for another day.
Anyway, I would imagine that this will be making an appearance in the new Supreme Court before long – doesn’t the Guildhall look nice with the boards taken down?
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Doherty (FC) (Appellant) and others v Birmingham City Council (Respondent) [2008] UK HL 57
That’s 79 pages of reading to do…
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