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Homelessness fact finding and Article 6

Published

on 7 November 2008

. 3 Comments

What more could you wish for on a Friday afternoon that a bit of homelessness law in the Court of Appeal? Don’t answer that. Anyway, on to Ali & Ibrahim v Birmingham City Council [2008] EWCA 1228.

Two joined appeals, one on behalf of Ms Ali and one on behalf of Ms Ibrahim, came before the Court of Appeal on whether findings of fact made by a review officer under s. 202 of the Housing Act 1996 and the subsequent right of appeal to the County Court under s. 204 were compatible with Article 6 of the ECHR and particularly the ECtHR decision in Tsfayo v UK [2006] ECHR 981. Central to the case was whether the House of Lords decision in Runa Begum v Tower Hamlets LBC [2003] UKHL 5 covered the issue and whether Runa Begum should be viewed differently in the light of Tsfayo.

Facts - Ali

Ms Ali, a single parent with two young children, made a homelessness application to Birmingham in October 2006. A full s. 193 duty was duly accepted. An offer was made in November 2006 of a flat in Sutton Coldfield, which Ms Ali refused. Birmingham then wrote to her saying that their duty had been discharged and notifying her of her right to a s. 202 review. Ms Ali requested a review. This review was carried out in February 2007 and recommended that a further offer be made due to an administrative error in the original offer letter.

In March 2007 Birmingham made an oral offer of a maisonette in Erdington. They then wrote to her on 14th March 2007. The letter was headed “Final Offer of Accommodation” and dealt with the consequences of a refusal (s. 193). Ms Ali denied that she ever received this letter. She viewed the property on 19th March and refused it. Birmingham subsequently sent another ‘duty discharged’ letter. Ms Ali again sought a review.

While this review was going on Ms Ali was made another offer of accommodation, this time in Teviot Tower. This offer was not made in connection with her homelessness, but because of her position on the waiting list. Ms Ali also refused this offer.

The reviewing officer sent a decision letter on 2nd May 2007, stating that it was not accepted that Ms Ali had not received the letter of 14th March. In part this decision relied upon the fact that the reviewing officer had spoken to Ms Ali, who had confirmed that she had received the offer letter. (Ms Ali claimed that in her telephone conversation with the reviewing officer she was referring to the offer letter for Teviot Tower). The reviewing officer went on to conclude that the property was suitable and the duty was therefore discharged.

Ms Ali pursued a s. 204 review to the County Court where HHJ McDuff QC held that he did not have to determine as an issue of fact whether the letter of 14th March had been received by Ms Ali.

Facts – Ibrahim

Ms Ibrahim has six children. She is of Somali origin and has a poor understanding of English. In May 2005 Birmingham accepted a full duty towards her and made her an offer in October 2005. Unfortunately, they seem to have made a bit of a hash of it. Birmingham claim that the authority sent Ms Ibrahim two letters at the same time. One appears to have been an ordinary housing waiting list letter, which clearly did not comply with s. 193. It was Birmingham’s case that this letter was included by mistake. The second letter, according to Birmingham, did comply with s. 193(5).

Ms Ibrahim contended that she only ever received the ‘waiting list’ letter, not the ‘s. 193’ letter. She refused the property, without viewing. Two subsequent reviews held that the duty had been discharged, so an appeal to the County Court was launched. Before HHJ McKenna it was argued that Ms Ibrahim had not received the second letter and that the accommodation was not suitable. HHJ McKenna found that the property was suitable and that the issue as to the receipt of the letter had been determined by the reviewing officer. Permission to the Court of Appeal was only allowed on the issue of the letter.

A third case was originally to be heard at the appeal. This related to a finding that an applicant was intentionally homeless, but as Birmingham had since accepted that they owed a full duty to her they argued that her appeal did not need to be heard. The CA agreed that that her appeal was academic and the point of principle as to the scope of the right to appeal in Part VII of the 1996 Act could be determined by reference to the appeals of Ms Ali and Ms Ibrahim. In the meantime the Secretary of State for the Communities and Local Government was joined as an interested party.

In a nutshell, the issue on appeal was therefore whether a decision on an issue of primary fact (in these cases whether a letter had been received by an applicant) could be made by a local housing authority’s review officer.

Arguments

On behalf of Ms Ali and Ms Ibrahim it was argued that:

The decision taken by an authority in cases under Part VII of the 1996 Act was a determination of their civil rights and obligations, thereby engaging Art 6(1);
The review by the authority was not by an “independent and impartial tribunal” – in order to comply with Art 6(1) an appeal to the County Court under s. 204 must extend to issues of fact where the decision on the facts did not involve consideration of issues of policy;
Runa Begum could be distinguished as only covering those decisions where issues of specialist knowledge and policy were required. It did not extend to cases, such as the instant case, where simple issues of fact were involved;
The ECtHR had distinguished Runa Begum on this basis when giving its decision in Tsfayo;
Consequently Ms Ali and Ms Ibrahim were entitled to a full merits appeal and should be able to challenge findings of fact through a full re-hearing, including the hearing of witnesses;
Therefore the County Court should have carried out a full merits appeal to prevent a breach of Article 6.1; in the alternative, the appellants sought a declaration of incompatibility in respect of s.204(1).

The arguments of Birmingham and the Secretary of State are expressed by Thomas LJ in just two sentences at [19]:
The decision in Runa Begum covered the issue; the decision in Tsfayo did not cast any doubt upon the principle. Even if it did, then this court was nonetheless bound to follow the decision in Runa Begum; it was for the House of Lords to decide that issue.

Consequently, four questions arose:

1. Were the decisions on appeal a determination of the civil rights of the appellants?
2. Had the issue on appeal been determined by the decision in Runa Begum?
3. Should this court in any event leave the determination of the issue to the House of Lords?
4. Does the decision of the Strasbourg Court in Tsfayo alter the conclusion that the issue is determined by Runa Begum?

Thomas LJ gave the only reasoned judgment, which Rimer and Hughes LJJ agreed with. I will quote fairly large parts of it, but I think that it is a clear and well structured judgment, which does not really need much summarising.

Determination of civil rights

The Secretary of State’s main submission was that Part VII was consistent with Art 6(1), an alternative additional submission was put forward that the decision as to whether a duty is owed under Part VII is not a determination of civil rights within Article 6. Thomas LJ was able to decide the case in the Secretary of State’s (and Birmingham’s) favour without needing to decide whether that alternative submission was correct and therefore assumed that Art 6(1) was engaged, much as had been done in Runa Begum.

Did Runa Begum cover this issue?

Thomas LJ then turned to consider whether Runa Begum covered the issue on appeal. At [25] he sets out the considerations to which he has had regard. He felt that in practice it was “far from easy to draw the distinction advanced” between the finding of suitability in Runa Begum and the findings of primary fact in the instant cases, as a “finding of suitability is itself a finding based on conclusions of primary fact” (point i of [25]). It followed that ([25.ii]):

There would be considerable complexity in administering a scheme with these distinctions. A scheme which enabled certain factual issues to be subject to a full right of appeal and others which would not be so subject would be too uncertain and too complex.

Furthermore ([25.iii]):

That complexity would be compounded in cases where there are multiple issues before the reviewing officer (as in the case of Ibrahim in the instant appeal). There would then be the danger, as Lord Bingham pointed out at paragraph 10 of Runa Begum, that “there would be a temptation to avoid making such explicit factual findings as [the reviewing officer] very properly did”. Moreover, if the extent of the review by the court was determined by the answer to the question whether a finding of fact was a primary finding, or whether that finding required expertise or whether that finding was determinative, the room for argument and uncertainty would be considerable. The importance of drawing these distinctions would be the more significant if the suggested right of appeal involved the court hearing witnesses in the one type of appeal but not in the other.

The issue before this court does not ultimately depend on drawing such distinctions between types of finding of fact… the issue is determined by an examination of the scheme as a whole. ([25.iv])

In Thomas LJ’s view it was also relevant that ([25.v]):

The additional review which would be provided by the suggested full right of appeal on fact would not in practice be very wide. On an appeal applying conventional judicial review principles, the court cannot substitute its own findings of fact for those of the decision-making authority if there was evidence to support them; questions as to the weight to be given to a particular piece of evidence and the credibility of witnesses are for the decision-maker and not for the court… The context in which an appellate court in accordance with these principles reviews a finding of fact by a lower court is that the finding was that of the judicial branch of the state and therefore an independent and impartial tribunal.

The full right of appeal sought from a review officer on fact might have to be significantly different from an appeal from a court. The housing review officer is part of the executive branch of the state and not the judicial branch. The question must arise as to whether the conventional scope of a full appeal would be sufficient, if the decision made is not made by an independent and impartial tribunal? … In many cases where there is a simple issue of credibility, it is difficult to see how there could be a full right of appeal unless the judge was asked to come to a fresh decision by hearing the evidence; the procedure adopted by the reviewing officer in reaching findings of fact is informal and there are no transcripts of evidence. ([25.vi])

There would then be the danger, as Lord Bingham pointed out at paragraph 10 of Runa Begum, that “there would be a temptation to avoid making such explicit factual findings as [the reviewing officer] very properly did”. Moreover, if the extent of the review by the court was determined by the answer to the question whether a finding of fact was a primary finding, or whether that finding required expertise or whether that finding was determinative, the room for argument and uncertainty would be considerable. The importance of drawing these distinctions would be the more significant if the suggested right of appeal involved the court hearing witnesses in the one type of appeal but not in the other. ([25.vii])

It is quite obvious from what Thomas LJ has said above that ([25.viii]):

There would therefore clearly be significant implications for not only the statutory scheme but for the court and tribunal system, if this court were to hold that a full right of appeal was required on findings of primary fact or on issues of primary fact where the finding was determinative, particularly if the appeal encompassed the re-hearing of evidence.

In any event, the “present scope of the appeal provides a real measure of protection for homeless appellants” ([25.ix]).

Given all of this it is not surprising that Thomas LJ concluded that the issue in this appeal was covered by Runa Begum.

Should the CA leave the matter up to the HL?

Short answer: yes. Slightly longer answer:

[28] In my view, even if the decision in Runa Begum did not cover the precise point in issue, it would not be right for this court to draw a distinction between different types of fact finding in a scheme so recently considered by the House of Lords. If distinctions are to be drawn, particularly where it is argued that it is akin to counting angels on the tip of pin, then it should be drawn by the House of Lords in a reconsideration of the approach to be taken to the scheme as a whole. This is an even more powerful consideration given the observations of Lord Hope in Doherty v Birmingham City Council [2008] UKHL 57 [2008] 3 WLR 636 at paragraphs 19-21. Furthermore for this Court to draw those distinctions would make administration of the statutory scheme dealing with homelessness very difficult in the period which elapsed while the inevitable appeal was made to the House of Lords. That would do no service to anyone.

[29] In any event therefore, I would have concluded that in my view this court should not seek to distinguish Runa Begum, but leave the question to be considered by the House of Lords on any application for leave to appeal. But that is not the primary reason for my view that the appeal should be dismissed. It is that the issues on this appeal are within the scope of that decision and that there are independent considerations that support that conclusion.

Tsfayo and Runa Begum

Thomas LJ then turned to question of whether the decision in Tsfayo altered the conclusion that the issue is determined by Runa Begum. Tsfayo related to a system for backdating housing benefit that had not been claimed at the appropriate time. In his view the ECtHR had not decided the issue in the instant case in a manner that would require a different answer than simply applying Runa Begum. At [34] he cited four key reasons:

1. The ECtHR relied on Runa Begum and said nothing to cast doubt on its correctness;
2. Both decisions turned on a very careful examination of the particular statutory scheme that applied;
3. Due to the different rates that local authorities could recoup housing benefit and backdated housing benefit from central government there was a powerful contention that the Housing Benefits Review Board was not independent of the parties;
4. Looking at the schemes as a whole it was readily apparent that a conclusion could be reached that the housing benefits scheme was not compliant with Art 6(1). This was not the case with Part VII of the 1996 Act.

The appeals were therefore dismissed and the Court refused to grant leave to appeal.

Rough Sleepers, Rough Justice

Published

chief

on 4 November 2008

in Housing law

. 4 Comments

R (RJM) (FC) v Secretary of State for Work and Pensions [2008] UKHL 63

This House of Lords judgment is now just under two weeks old, but I think it is still worthy of comment here. It is a discrimination case dealing with benefits and rough sleepers, but has some important implications in much broader areas, at least in my opinion. It is somewhat tangential to what is usually covered, so we would doubtless welcome comments on whether this is of interest to our astute and loyal band of readers.*

The facts, briefly (some of them from the CA decision):

The claimant, RJM, suffers from mental health problems. During the period before 2004 he received income support, including a disability premium. In August 2004 RJM became homeless, i.e. street homeless. Under the Income Support (General) Regulations 1987 those without accommodation are not entitled to receive the disability premium and that part of his payment was consequently stopped. The difference to RJM was about £23 a week.

Legal Framework

The criteria for entitlement to Income Support are contained in s. 124 of the Social Security Contributions and Benefits Act 1992:

(1) A person in Great Britain is entitled to income support if - …
(e) he falls within a prescribed category of person;
…
(4) Subject to subsection (5) below, where a person is entitled to income support, then –
(a) if he has no income the amount shall be the applicable amount; and
(b) if he has income the amount shall be the difference between his income and the applicable amount.

The applicable amounts are set out in regulation 17 of the Regulations:

17. Applicable Amounts
Subject to regulations 18 to 22A and 70 (applicable amounts in other cases and reductions in applicable amounts and urgent cases), a claimant’s weekly applicable amount shall be the aggregate of such of the following amounts as may apply in his case:
(a) an amount in respect of himself or, if he is a member of a couple, an amount in respect of both of them, determined in accordance with paragraph 1(1), (2) or (3), as the case may be, of Schedule 2;
…
(d) the amount of any premiums which may be applicable to him, determined in accordance with Parts III & IV of Schedule 2 (premiums);
(e) any amounts determined in accordance with Schedule 3 (housing costs) which may applicable to him in respect of mortgage interest payments or such other housing costs as are prescribed in that Schedule…

Under regulation 21(1), paragraph 6 of Schedule 7 provides that for “a claimant who is without accommodation”, the amount applicable to him is only that under regulation 17(1)(a). Therefore, a claimant without accommodation has no entitlement to the premiums that they would otherwise be entitled to under regulation 17(1)(d), which as mentioned above was worth about £23 a week to RJM.

RJM claimed that the Regulations are incompatible with article 14 of the ECHR and article 1 of the First Protocol to the ECHR (A1P1), which everyone will know, but for ease of reference they are, as far as is relevant:

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law - A1P1

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status - Art 14

The Claim

There were three issues in the case before the House of Lords :

1. Does disability premium come within the scope of A1P1?
2. Is homelessness covered by “other status” in article 14?
3. If the answer to 1 and 2 is “yes”, is any discrimination justified?

Their Lordships (Lord Hope of Craighead, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Lord Mance and Lord Neuberger of Abbotsbury) unanimously agreed that all three questions could be answered “yes”, thereby dismissing the appeal.

Lord Neuberger gave the leading judgment. Lords Walker and Mance chipped in with some supplementary points.

A1P1

In the CA Ms Lieven QC for the Secretary of State had conceded that RJM’s claim was covered by A1P1, although she criticised the ECtHR’s reasoning. She also stated that this concession would be repeated in the House of Lords. Mr Howell QC, now leading for the Secretary of State in the House of Lords thoroughly withdrew this concession.

Lord Neuberger discussed a series of ECtHR cases. In Kopecky v Slovakia (2005) 41 EHRR 944 it was said that A1P1 “does not guarantee the right to acquire property”. Therefore, for a claim to come under A1P1 the claimant needed to own, or at least enjoy a legitimate expectation to, property. There could be no legitimate expectation unless there was a “currently enforceable claim that was sufficiently established”. The logical conclusion, expressed in von Maltzan v Germany (2006) 42 EHRR SE92, is that if A1P1 is not engaged then article 14 can not apply.

However, in Gaygusuz v Austria (1996) 23 EHRR 364, the ECtHR had held that an Austrian scheme of emergency assistance was covered by A1P1, although this was partly based on the fact that entitlement to the benefit was “linked to the payment of contributions to the unemployment insurance fund”.

But in Stec v UK (2005) 41 EHRR SE295, the ECtHR decided that it was “artificial to hold that only benefits financed by contributions to a specific fund fall within the scope of [A1P1].” Furthermore:

“… the relevant test is whether, but for the condition of entitlement about which the applicant complains, he or she would have had a right, enforceable under domestic law to receive the benefit in question … Although [A1P1] does not include the right to receive a social security payment of any kind, if a state does decide to create a benefits scheme, it must do so in a manner which is compatible with art 14.”

Mr Howell invited their Lordships to refrain from following Stec and to apply the Kopecky and von Maltzan line of reasoning. Lord Neuberger rejected this invitation saying (at [31]) that Stec was:

“a carefully considered decision, in which the relevant authorities and principles were fully canvassed, and where the Grand Chamber of the ECtHR came to a clear conclusion, which was expressly intended to be generally applied by national courts. Accordingly, it seems to me that it would require the most exceptional circumstances before any national court should refuse to apply the decision.

[32] I do not consider that any exceptional circumstances can fairly be said to arise here.”

Mr Howell accepted that it was illogical to distinguish between funded social welfare payments (the Gaygusuz scenario) and unfunded social welfare payments (the Stec scenario). Accordingly, he sought to argue that both types were outside of the scope of A1P1. Therefore, not only was Stec wrongly decided, but so was Gaugusuz and the line of cases that followed on from that. Lord Neuberger had little difficulty in agreeing with Mr Drabble QC, on behalf of RJM, that it was “inconceivable that Gaygusuz would not be treated as good law by the ECtHR.”

Homelessness and Art 14

The Secretary of State argued that in order to succeed under article 14 a claimant must show that they are being discriminated against on the grounds of a “personal characteristic” and homelessness does not count as such a characteristic. On behalf of RJM it was argued that the ECtHR’s jurisprudence establishes that there is no requirement for an applicant to show that they are being discriminated against on the grounds of a “personal characteristic”. Alternatively, homelessness is such a characteristic, so any such requirement is satisfied. It may be remembered that the phrase “personal characteristics” comes from Kjeldsen, Busk, Madsen and Pedersen v Denmark (1976) 1 EHRR 711.

In Lord Neuberger’s opinion the first part of the claimant’s argument failed. There was no case to support this proposition. Mr Drabble sought to rely on a number of ECtHR decisions where article 14 claims had been dismissed without deciding whether the alleged discrimination was on the grounds of a personal characteristic. However, this was dismissed by Lord Neuberger at [38]:

“The absence of any reference in those judgments to the need for the alleged discrimination to be on grounds of a personal characteristic is just as easily explained on the grounds that it was unnecessary to consider the point, as the claim failed on other grounds, or that the point was irrelevant as there was no dispute on that issue in the particular case.”

However, on the issue of whether homelessness was a personal characteristic so as to qualify as “other status” under article 14, Lord Neuberger sided with RJM.

It should be noted that the ‘homelessness’ in this case is the much narrower definition that most members of the public probably associate with the word, rather than the Housing Acts definition. Lord Walker at [4] refers to the ODPM’s figures of 459 rough sleepers in England and Wales in 2005 (this is probably a mistake and should refer to England only - according to the Department of Communities and Local Government there were 483 people sleeping rough in England in June 2008. In Wales there was between 128 and 165 people sleeping rough in March 2008. Of course, I’m sure that we all know that these figures are to be taken with a pinch of salt).

Lord Neuberger noted that a wide and generous interpretation should be applied to the words “or other status” in article 14. He cited the examples of military rank, as against civilian; residence or domicile; and previous employment within the KGB. Furthermore, the concept of “personal” in the phrase suggested that one should be concentrating on what somebody is rather than what is being done to them.

Lord Walker said that the phrase “personal characteristics” from Kjeldsen is not a precise expression and to his mind “a binary approach to its meaning is unhelpful.” Anyone interested in article 14 should take a couple of minutes to read [5] in its entirety, but in essence “personal characteristics” are like a series of concentric circles. Those closest to the centre are those characteristics that are innate, largely immutable and closely connected with an individual’s personality. Other acquired characteristics are further out in the circles. This is important as the “more peripheral or debateable any suggested personal characteristic is, the less likely it is to come within the most sensitive area where discrimination is particularly difficult to justify”.

In Lord Neuberger’s opinion the CA’s reasoning on this point was flawed as they had been influenced by the fact that being homeless was a voluntary choice. As Lord Neuberger acknowledged that in itself is quite clearly not true in every case, but his Lordship preferred to concentrate on whether voluntariness was determinative:

“I do not accept that the fact that a condition has been adopted by choice is of much, if any, significance in determining whether that condition is a status for the purpose of Article 14.” [47]

The CA was also influenced by the fact that homelessness had not been recognised as a status by the ECtHR, but Lord Neuberger viewed that as a neutral point as the issue did not appear to have been raised.

Justification

This left the question of whether in the discrimination could be justified. The Secretary of State advanced two arguments to justify the practice. Firstly, the Secretary of State should encourage the disabled homeless to seek shelter, rather than making it easier, in financial terms, for them to remain without accommodation. Secondly, those without accommodation are less likely to require a supplement than those who do have accommodation. In the words of the Secretary of State’s witness:

“Claimants in accommodation have a range of expenses and financial pressures related to that accommodation that claimants without accommodation do not have.”

While much can be said against these attempts at justification, in Lord Neuberger’s opinion neither of them are unreasonable. He referred to the fact that “policy concerned with social welfare payments must inevitably be something of a blunt instrument, and social policy is an area where a wide measure of appreciation is accorded by the ECtHR to the state” [54] and that this “is an area where the court should be very slow to substitute its view for that of the executive” [56].

Lord Mance stated that he found the issue of justification difficult, but that, with some residual doubt, he had come to the conclusion that the discrimination in the Regulations had legitimate aims and was sufficiently proportionate to be justified.

The ECtHR and domestic doctrine of precedent

Lord Neuberger then dealt with the situation where the Court of Appeal is faced with an otherwise binding decision of the House of Lords or an earlier Court of Appeal, but there is a subsequent conflicting ECtHR judgment. In the process he laid down a slight adjustment to the famous principles in Young v Bristol Aeroplane Co Ltd [1944] KB 718.

Where the otherwise binding decision is from the House of Lords then, unless there are wholly exceptional circumstances, the CA should follow the HL decision. Effectively then there is no change to the position in Kay v LB of Lambeth [2006] UKHL 10. For exceptional circumstances Lord Neuberger referred back to Lord Bingham at [45] in Kay.

Where the otherwise binding decision is one of its own then the CA is “free (but not obliged) to depart from that decision.” [66]

Interestingly s. 2(1)(a) of the Human Rights Act 1998 is referred to by Lord Neuberger at [34] as part of the discussion on Stec, but does not get mentioned at all in this discussion on precedent.

Lords Hope, Rodger and Mance all agreed with Lord Neuberger and Lord Walker.

Counsel was Richard Drabble QC and Zoë Leventhal for RJM; John Howell QC and Natalie Lieven QC for the Secretary of State; and Rabinder Singh QC made written submissions on behalf of the Equality and Human Rights Commission.

*As this is the first report I have written up for Nearly Legal I am hoping that flattery will get me everywhere.

Mortgages, sale of property and human rights

Published

on 12 October 2008

in Housing law

. 6 Comments

Horsham Properties Group Ltd v (1) Paul Clark (2) Carol Beech and GMAC RFC Ltd (Third Party) and The Secretary of State for Justice (Intervener) [2008] EWHC 2327 (Ch)

Now this is a complicated little case which, I suspect, will give rise to more questions (and litigation) than it answered.

Mortgages: a very short introduction

Prior to 1970, if A granted B a mortgage over A’s land then, unless the mortgage contract provides otherwise, B was entitled to recover possession of it at any time. There is no need for A to default under the terms of the contract or do anything like that. B’s right to possession arose immediately and the court had no power to refuse B’s claim for possession, save for a very limited discretion to adjourn to allow A to sell the property or otherwise raise the money to pay off the mortgage - see, for example, Citizens Permanent Building Society v Caunt [1962] Ch 883.

This, as will be immediately apparent, is not a good thing. Unless borrowers could negotiate some contractual protection, it left them at the mercy of (unscrupulous) lenders and it made a mortgage a very unattractive method of financing the purchase of property. The Payne Committee of 1968 recommended giving the court powers to adjourn or suspend possession proceedings on terms relating to the repayment of the mortgage by installments.

This report gave rise to the Administration of Justice Act 1970 (and, indirectly, the Administration of Justice Act 1973.) The effect of those Acts is that, in respect of residential property, where possession is sought by a lender, then the court has the power to suspend the possession order on terms that the defendant pay the mortgage plus a sum off the arrears. The court has a very wide discretion at this stage and should ask itself whether the arrears can be repaid over the remaining term of the mortgage (see Cheltenham & Gloucester Building Society v Norgan [1995] EWCA Civ 11). In practice, this is the most significant right available to borrowers who find themselves in financial difficulties and, in most cases, is sufficient to keep a borrower in their home.

The facts

Mr Clark and Ms Beech had purchased a property with the benefit of a loan from GMAC, which was secured on the property as a mortgage in the usual way. During the course of the mortgage, Mr Clark and Ms Beech fell into arrears.

The mortgage provided that, if the mortgage fell into arrears, GMAC could appoint a receiver, which they duly did. Then, again pursuant to the mortgage contract, the receiver sold the property at auction. (Although GMAC appeared to be relying on their contractual powers, it should be noted that s.101 Law of Property Act 1925 would have provided another way of achieving a similar result. This becomes important later on.)

The property was purchased by Horsham Properties Group Ltd (”Horsham”).

At this stage (a) the sale of the property had raised sufficient monies to discharge the mortgage and (b) Mr Clark and Ms Beech were still in occupation of the property.

Having purchased the property, Horsham then issued trespasser proceedings against Mr Clark and Ms Beech, seeking to recover possession of the property. The effect of this was to bypass all the protections contained in the Administration of Justice Acts, something which had been found to be perfectly lawful by the Court of Appeal in Ropaigealach v Barclays Bank [2000] QB 263.

The arguments

Ms Beech argued that the Ropaigealach decision had to be re-examined in light of the Human Rights Act 1998. In particular, she argued that:

(a) the power to appoint a receiver and / or sell the property should be interpreted as arising only once the court had sanctioned such a step; or

(b) the protection of the Administration of Justice Acts should continue to apply even where the claim for possession is brought by someone who has purchased the property from a mortgage company.

She framed these arguments in the light of Article 1 of the First Protocol (”A1P1″) to the European Convention on Human Rights (right to peaceful enjoyment of possessions) and argued that, if they were rejected, there should be a declaration of incompatibility.

The decision

The Court (Briggs J) had no difficulty in accepting that, in losing the right to pay off the mortgage, one had lost a “possession” within the meaning of A1P1. However, he did not find that there had been any deprivation of that possession by the State. He gave two reasons for this:

(a) the current situation had arisen because of the contractual provisions (and an admitted default by Mr Clark and Ms Beech) and not because of any State action; however

(b) the position would have been no different if GMAC had relied on its various statutory powers (s.101 Law of Property Act 1925) since those statutory powers did not interfere with any right, but merely created a ‘default’ position which the parties were free to alter as they saw fit.

In case he was wrong about this, Briggs J went on to consider whether the ability of GMAC to sell the property without a court order was in the public interest. He found that it was - the power to sell without a court order was an integral part of the economic basis for mortgage lending, without which, the mortgage market would not exist. There was no need for an individual assessment of the proportionality of exercising this power in any given case because the appropriate bargain had already been struck and relied, by analogy, on Lord Scott in Quazi v LB Harrow [2004] 1 AC 983.

The suggestion that the protection of the Administration of Justice Acts should apply, regardless of who was bringing the possession claim, was dismissed in very short order. Those powers could only apply so long as a mortgage remained in force. The sale of the property at auction had raised sufficient monies to discharge the mortgage. If there was no mortgage then there was no scope for the Acts to apply.

A possession order was made.

The good, the bad and the ugly

There is some (but not much) good news in this case. It is very encouraging that no-one seemed the slightest bit surprised to be dealing with a Human Rights Act 1998 argument in the context of a dispute between private parties under a private contract. If this case encourages practitioners to raise more HRA arguments in such cases then it can only be a good thing.

Briggs J was also heavily influenced by the fact that it was common ground that Mr Clark and Ms Beech had been in arrears and had broken the terms of their mortgage agreement. He expressly left open the possibility that he would come to a very different conclusion if the powers of receivership and sale had been used without such default having occurred.

The bad news is more obvious. This is quite a loophole for any lender who wants to get around the protections of the Administration of Justice Acts and in the current market, the temptation to do so will, one suspects, lead many more lenders to use this route. The importance of scrutinising your mortgage terms and conditions is plain.

As to the ugly nature of this case. Sadly, the discussion of the law of proportionality was some 4 years out of date. The idea that proportionality simply cannot arise on the facts of an individual case because it is presumed that all questions of proportionality have been dealt with at a higher level (whether in statute or in the market place) is, to put it mildly, one of hot topics in current human rights thinking.

The European Court of Human Rights has made clear in Connors v UK (2005) 40 EHRR 9 and McCann v UK (19009/04), that each person faced with eviction proceedings should be able to have a court assess the proportionality of the proposed eviction and, whilst the House of Lords haven’t quite gone as far as this yet, in both Kay v LB Lambeth [2006] UKHL 10; [2006] 2 AC 465 and Doherty v Birmingham CC [2008] UKHL 57, they made clear that the approach of Lord Scott in Quazi could not stand.

Care home closures and right to life

Published

on 8 October 2008

in Housing law

. 0 Comments

Verna Wilson & Ors, R (on the application of) v Coventry City Council [2008] EWHC 2300 (Admin) was a judicial review of the decisions by Coventry and Havering councils to close care homes with elderly residents suffering from dementia or physical disability. The cases were joined and rolled up into a permission and substantive hearing. Ms Hossack acted as solicitor-advocate for the Claimants.

The Claimants pleaded both Article 2 - right to life and Wednesbury unreasonableness.

In relation to art 2, the applicants submitted that

the published medical literature and two expert reports produced to the court on behalf of the claimants established that there was a statistically demonstrable increase in the rate of mortality of residents in care homes who are elderly and/or who suffer from dementia, when they are moved from care homes where they have lived for a number of years, unless they are moved as a group from one home to another with the staff that have always looked after them.

The decisions to close the care homes were made without the decision-makers being aware of the risks. They were a breach of Art 2, or alternatively the decision-makers had failed to take into account a material factor, or alternatively, for the same reasons, the decision was unreasonable.

There were also two specific challenges, one to Coventry, one to Havering, which were dismissed as premature, being to decisions that effectively hadn’t been made yet.

The claim failed overall. The Court found that…

s.21(1) National Assistance Act does not require accommodation to be provided at any particular establishment.
s.21(b) requires the local authority to have regard to the welfare of the persons for whom accommodation is provided.

However, this does not require individual reviews to be made prior to the decision to close the homes. R(Grabham) v Northamptonshire CC EWHC 3292 (Admin) followed (a previous case in which Ms Hossack acted). R (Cowl) v Plymouth District Council [2001] EWCA Civ 1935 ([2002] 1 WLR 803)said that Art 2 considerations came into play when each individual case was considered in the context of a full needs assessment as against proposed alternative accommodation. Thus Art 2 considerations were engaged not by the decision to close the home but in the context of a later assessment of individual need.

The claimants’ argued new point - the medical evidence referred to above - was claimed to show the need for assessment prior to a group being dispersed and so individual assessment to be carried out prior to the closure decision and assessed in the light of collective need to inform the closure decision. Thus the decision should be quashed.

In this case, however, on the assurance of the Defendants, the individual assessments were not to be carried out piecemeal but at the same time, albeit after the closure decision. So the argued point did not arise. This was not to rule out the possible success of the argument (or indeed to support it) in another situation.

In addition, the medical evidence was at issue. The question of the factuality of the statistically increased risk of death was challenged by the Defendants. The Court declined to take R(Dudley) v East Sussex CC [2003] EWHC 1093 Admin as a precedent on the validity of the evidence, as these were factual issues, not questions of law.

Having considered the material, at most it established that some studies showed the statistical increase, while others did not. The conclusion drawn was that different people reacted to a move in different ways, and so sensitivity and care should be take with each individual. There may be some who cannot be moved ever.

In considering the individual reports, the Court was not impressed by Ms Hossack’s extensive criticism of a Dr Jefferys including allegations against him that should not have been made in these proceedings.

The Court found that a fair summary of available material was before the decision-makers in Coventry and that decision-makers in Havering were alerted to the issue.

In view of this, there was no infringment of Art 2 and the claim dismissed.

In regard to costs, it was a question whether the claimants were legally aided, although the application made it appear that they were. The Defendants would not pursue costs against the Claimants individually if they were not legally aided, but sought permission for application for a wasted costs order against Ms Hossack, the solicitor and advocate. Permission granted.

Application for permission to appeal refused as being wholly without merit.

Notes on Doherty v Birmingham CC

Published

on 30 July 2008

in Housing law

. 10 Comments

So, Doherty (FC) (Appellant) and others v Birmingham City Council (Respondent) [2008] UK HL 57

Well, well, and once more for effect, well. This is a very interesting result indeed, although I use the word result in a non-definite kind of way.

The headline is simple enough, the case was remitted to the High Court for determination of the domestic judicial review issues raised as defence to possession. Court of Appeal overturned. The majority would also have made a declaration of incompatibility in regard to the Mobile Homes Act 1998, if the incompatibility had not already been removed by the passing of the Housing and Regeneration Act. Their Lordships declined to vary or amend Kay v Lambeth in the light of this appeal or the last minute submissions on McCann v UK.

Behind the headlines though, there is a hell of a lot of devil in the details. In particular, I think it is safe to say that there has been some movement on Kay v Lambeth, enough to make the situation not quite so bleak as it then appeared.

I’ll start with the majority and the judgments of Lords Hope and Walker, agreed by Lord Rodger

For those with attention spans of less than a year, the majority in Kay v Lambeth held to a formulation on Human Rights challenges to possession claims where the landlord’s right to recover possession is unqualified that was set out by Lord Hope in para 110 of Kay. To wit, the only situations in which it would be open to the Court to refrain from proceeding to summary judgment are:

(a) if a seriously arguable point is raised that the law which enables the court to make the possession order is incompatible with article 8, the county court in the exercise of its jurisdiction under the Human Rights Act 1998 should deal with the argument in one or other of two ways: (i) by giving effect to the law, so far as it is possible for it to do so under section 3, in a way that is compatible with article 8, or (ii) by adjourning the proceedings to enable the compatibility issue to be dealt with in the High Court; (b) if the defendant wishes to challenge the decision of a public authority to recover possession as an improper exercise of its powers at common law on the ground that it was a decision that no reasonable person would consider justifiable, he should be permitted to do this provided again that the point is seriously arguable: Wandsworth London Borough Council v Winder [1985] AC 461.

These will be called gateway (a) and gateway (b) below. In Kay the majority view was clearly that gateway (b) would mean a challenge on the basis of domestic public law grounds, not broader Convention grounds. The minority in Kay considered that there may be exceptional cases where the particular personal circumstances of the occupier may give rise to an Art. 8 defence.

In his judgment, Lords Hope held that the facts of Doherty - a gipsy family faced with summary possession after a Notice to Quit from a site that they had occupied for many years - were distinct from those of Connors v UK, Kay and indeed McCann, although most similar to Connors.

Here too was a unqualified right to possession by the local authority, where the decision to exercise that right was unchallengable under s.6(1) HRA 1998 as it was acting to give effect to the provisions of statute - s.6(2)(b). (Both Jan Luba QC for Doherty and Philip Sales QC for the Secretary of State challenged this point and it was not uniformly accepted - see below).

This was not a common law possession issue, but, because of the specific exception of local authority caravan sites from the Caravan Sites Act 1968 and the Mobile Homes Act 1998, an exercise of a specific right to common law possession given by statutary enactment - such that common law rights are effectively permitted by statute. (Again, not uniformly accepted).

Given this, and the Dohertys’ position as gypsies, the Connors issue of gateway (a) incompatibility applies - unjustifiably discriminatory statute. Because s.6(2)(b) applied, there was no possibility for the Courts to interpret the statute in accordance with the HRA (s.3(1)), leaving a declaration of incompatibility as the gateway (a) resort. As a result of the passing of the Housing and Regeneration Act, which corrects the issue, a declaration is not neccessary.

But gateway (b) could also apply. In Kay, the defence on public law grounds was limited to whether the decision to claim possession was ‘one that no reasonable person would consider justifiable’. Lord Hope points to his own comment at para 114 of Kay that the grounds of challenge to a decision to bring a claim were whether it was ‘arbitrary, unreasonable or disproportionate’. So gateway (a) and (b) work together to address the incompatibility of lack of procedural safeguard. If the statutes can be effected by the court in accordance with article 8 under gateway (a), fine. if not then it is open to the defendant to argue that that court must be satisfied that, on the basis of the grounds the claimant gives for its decision to seek possession, the decision is not Wednesbury unreasonable [para 53] (What grounds given for the decision? - this is summary possession!)

On the facts of this case, gateway (b) might have give an effective defence to the appellant. Gateway (b) provides an effective procedural protection. But, at para 55. Lord Hope says:

I think that in this situation it would be unduly formalistic to confine the review strictly to traditional Wednesbury grounds. The considerations that can be brought into account in this case are wider. An examination of the question whether the respondent’s decision was reasonable, having regard to the aim which it was pursuing and to the length of time that the appellant and his family have resided on the site, would be appropriate. But the requisite scrutiny would not involve the judge substituting his own judgment for that of the local authority. In my opinion the test of reasonableness should be, as I said in para 110 of Kay, whether the decision to recover possession was one which no reasonable person would consider justifiable.

Lord Hope’s address to McCann, at paras 15-21, is solely in terms of the issue of incompatibility and ‘objective standards’ of an arguable case. There is no address to the issue of whether domestic judicial review grounds and a consideration or proportionality are commensurate, despite McCann’s express view on this. But Lord Hope’s suggestion that judicial review grounds could address disproportionate decisions [para 52] and the hints at para 55 may indicate a broader set of grounds for public law defence to unqualified possession claims than just Wednesbury unreasonableness.

Lord Walker’s judgment broadly ends up at the same point. However, Lord Walker spends some time to point out that the statute/common law distinction was not at issue in Kay, in order to support the view that s.6(2)(b) applies in the present case - implementation of statute not common law is at issue. Accordingly, Lord Walker agrees on a declaration of incompatibility via gateway (a) and also that it is not now required.

On gateway (b) Lord Walker, who was in the minority in Kay, is not happy about the distinction between HRA grounds and ‘traditional public law grounds’ [paras 108 -110]. He remains unsure that s.6(2)(b) applies to what are common law possessions. In view of McCann, he is even more concerned about the separation of HRA and JR grounds [para 116]. In fact, the circumstances where a viable defence appears may not be as exceptional as he thought in Kay, in view of Local Authorities looking to avoid contested possession claims via ‘relinquishing notices’ as in McCann (Birmingham and others should rethink their policy).[para 121-122]. The Court’s consideration of any gateway (b) defence should be focussed on the Local Authorities’ decision making process.

Lord Rodger agrees with Lords Hope and Walker, with nothing further.

Lord Scott’s judgment suggests that traditional judicial review procedure should be amended to allow considerations of disputed fact [para 68] as a part of gateway (b), and also that the defendant’s personal circumstances might well be a factor to which the local authority should have regard in making the decision on a possession claim, and therefore open to an examination by the court of whether the decision was unreasonable and disproportionate.[para 70]

Lord Scott did not see the need for a declaration of incompatibility in the present case, Kay having removed any Art 8 incompatibility found in Connors [para 80]. There is also a spectacularly ill-humoured and, in my immensely humble opinion mistaken attack on McCann at paras 82 - 88.

Lord Mance agrees on remitting the case to the High Court for gateway (b) consideration, but does not agree on an (abortive) declaration of incompatibility. Although the possession claim was a statutory matter [ para 132], the availability of gateway (b) means that the statute is not incompatible with Art 8, although the statute may well have been incompatible per se. In any case, the challenge in Doherty was that if Art 8 was not available to him to rely on in one form or another, this was incompatible with convention rights. No incompatibility of specific statute was raised [para 154].

On gateway (b) Kay excluded convention grounds [para 136] but this case was not the same as Kay. In Kay, the challenge was to the local authority’s decision to enforce its undoubted right to possession. In Doherty, the challenge was to the validity of the decision to give a notice to quit, which is a pre-condition to any right to possession [para 157].

In Qazi, Connors, Kay and McCann situations, a Local Authority has discretion as to whether it undertakes the steps necessary to resume possession, or whether to bring proceedings. It arguably cannot be described as action ‘to give effect to’ or ‘enforce’ a statutory provision which may be considered incompatible with Convention rights. The Council is giving effect to its own evaluation of the position and in doing so is obliged to respect Convention values. Non-compliant decisions should therefore be challengeable under the Wandsworth LBC v Winder principle [para 158]

In the present case, the decision to bring possession proceedings could not be considered as ‘giving effect’ to statute, so s.6(2)(b) did not apply and would not hinder a challenge on Art 8 grounds to the validity of the notice to quit and thus a defence to the possession claim [para 159].

Kay is distinguishable on the basis that this case was a challenge to the validity of the notice to quit [para 160-161]. This case should be remitted to the High Court to consider an Art 8 challenge to the validity of the notice to quit - a challenge on Convention as well as conventional judicial review grounds. Thus any incompatibility with statute is removed [para 161]. Lord Mance regrets that it was not possible to vary Lord Hope’s ‘para 110′ (above) to enable Convention grounds for challenge.

And there we are. A majority which isn’t, as Lords Hope and Walker have significant differences in their views, with Lord Rodger agreeing with both. Judgments which suggest that the Kay formulation of judicial review grounds for defence have been extended, or not, or maybe should be taken with a bit more latitude than Kay apparently decided, but not so far as full Convention grounds, unless they should be considered.

I’ve no time for a properly considered, critical view, but at the very least, a defence on grounds of unreasonableness of the decision to bring proceedings on a summary possession claim has been acknowledged to be available, to supposedly address proportionality and that it is more likely to be raised and indeed justified than Kay apparently permitted.

A few quick points.

Their Lordships generally regretted that they hadn’t been constituted as a 7 strong panel, in the light of the late arrival of McCann. A 5 strong panel simply could not change the decision of the panel of 7 in Kay.

The gateway (b) defence only applies to summary possession proceedings brought by public bodies (now potentially including RSLs after Weaver).

The proportionality issue is seen as a matter of the decision brought by the landlord - so only applies to public landlords and their decisions - not to the decisions of the court.

Where statute provides specifically for a mandatory procedure, it is likely that a full challenge to compatibility is the only option - and extremely unlikely to be successful.

There is much else to digest, whether obiter or not part of the ratio decendi. I may well return to this shortly. For the moment, I going to start work on the public law defence for a summary possession case that has just dropped into my lap, and I’m grateful that Doherty at least gave some wriggle room on that.

Any CLP people care to contribute views?

Incoming

Published

on 29 July 2008

in Housing law

. 3 Comments

The House of Lords is due to hand down judgment in Doherty v Birmingham tomorrow (30/7). This will include their Lordships’ first take on McCann v UK.

I’m aiming to have some sort of case note up by tomorrow night. It will be the start of a busy patch for judgments.

Gilboy redux

Published

on 2 July 2008

in Housing law

. 0 Comments

Gilboy, R (on the application of) v Liverpool City Council & Ors [2008] EWCA Civ 751 is the appeal from the Judical Revew decision noted in this previous post.

The appeal, was by general consent, on one issue alone. Does the internal review procedure for reconsideration by local housing authorities of a decision to terminate a demoted tenancy established by sections 143E-143F of the Housing Act 1996 and the Demoted Tenancies (Review of Decisions (England) Regulations 2004 violate Article 6 of ECHR?

My previous notes contain the meat of the issue. The argument, extended from the High Court Tsfayo issues, was that the availability of Judicial Review could not satisfy Art 6 requirements in regard to the Local Authority review of a decision to make a mandatory possession claim for a demoted tenancy, because the issues in the review, as in this case, are often matters of fact and not amenable to JR.

Thus, argues the Appellant, there is no impartial judicial tribunal for the possession claim other than ensuring the procedure has been followed via JR or County Court (as in Donoghue and McCann in the ECtHR- but these were Art 8 cases)

The stumbling block was a Court of Appeal decision on a similar set of procedures in Introductory Tenancies, McLellan v Bracknell Forest Borough Council [2001] EWCA Civ 1510 [2002] QB 1129, which held that Art 6 was engaged, but the provisions were compliant.

The Court of Appeal decided that the differences between introductory and demoted tenancy provisions were not enough to distinguish McLellan. The House of Lords had in effect approved McLellan in Kay v Lambeth London Borough Council [2006] 2 AC 465.

There follows an interesting discussion of McCann. It is pointed out that McCann concerns a ‘bypassing’ of the procedural and statutory processes of secure tenancy. In short, the Court of Appeal considers that Art 6 and Art 8 are closely entwined, such that it is unlikely that a procedure that was Art 8(2) compliant would separately be found in breach of Art 6, and in the McCann judgment, there was

nothing to indicate that the European Court disapproved as violating Article 8 (or indeed Article 6) any of the schemes which make up what the court describes as “a complex system for the allocation of public housing.”

This looks like the first attempt at a limitation of the impact of McCann seen in the wild.

In conclusion:

Contra the High Court judgment, it must be a local authority officer that conducts the review.
There is no good reason to change the view in McLellan that Art 6 is engaged, contra the High Court judgment.
However, there is no statutory requirement that the review involve findings of fact and, even if they do, they are ’simply staging posts on the way to much broader judgements’ in the exercise of discretion, which remain amenable to JR.
There is no material distinction between the introductory and demoted tenancy schemes inasmuch as they are both ‘within recognised categories of administrative decision-making’. McLellan also covers demoted tenancies.

Appeal dismissed.

This judgment will certainly merit some further thought, in particular on the treatment of McCann.

Wondering about McCann

Published

on 18 May 2008

in Housing law

. 3 Comments

Well, McCann v UK certainly seems to have stirred things up. Naturally, most of the speculation is on the effect and extent of the judgment.

I’m still trying to work out for myself what the likely or even possible effects are, so this is a work in progress.

In descending order of certainty…

Common law summary possession by a local authority/public body landlord after Notice to Quit (e.g Ex joint tenants; temporary accommodation under s.183 and possibly s.192 HA 1996; ’successors’ to deceased tolerated trespassers; non-successor occupants; etc.)

Possession proceedings will need to include the potential to consider whether the eviction is proportionate under Art 8.2 ECHR.

Does an assertion that the eviction is not proportionate constitute a defence? I think it is likely to be so. Although alternatives might include compensation, if the eviction is disproportionate, the court would be aiding a breach of Art 8.2 in making a possession order. (The similarity to the ‘unlawful act’ element in Malcolm v Lewisham might mean that the House of Lords judgment in Malcolm has an impact, but Malcolm concerns interpretation of statute, not ECHR).

Where will this leave the tenant? Most likely as an ex-tenant still in occupation. I can’t see much in McCann to suggest that the ending of the secure tenancy per se was taken to be disproportionate, the issue being purely that the possession proceedings could not consider proportionality of eviction.

Mandatory possession proceedings brought by a public body landlord under statute - for instance introductory and demoted tenancies.

Trickier, as to some extent the summary nature of the possession hearing is given in statute. While in common law proceedings, the Court can introduce ‘proportionality’ under its own duty under the Human Rights Act, it is surely different where the process is statutorily limited. Would the best the Court could do be a declaration of incompatibility?

Possession proceedings by non-public bodies, private landlords or RSLs, where summary or mandatory.

There have been suggestions that McCann might hold other than for a public body landlord. Given that private and RSL landlords have no duty to comply with the ECHR under the HRA, there is no duty on them to behave proportionately in evictions and therefore no basis for the court to hold them to proportionality as being their duty.

So, the only way that I can see that McCann would extend beyond public body landlords is if the Courts, as public bodies, are taken as being required to consider proportionality in their decisions to make an possession order - the duty of behaving proportionately being the court’s, not the landlords. Thus there would be a general duty to consider proportionality in all possession claims, whether brought by private landlord, RSL, public landlord, and whether summary, mandatory, or discretionary.

I very much doubt that this can be the case. It is not, after all, the court that is evicting the (ex)tenant/occupier, it is the landlord.

McCann focussed on the procedural ‘defect’ of the summary possession procedure against a local authority (ex)tenant. The LA’s ability to ’sidestep’ the requirements of HA 1985 via the NTQ was specifically raised as an issue by the ECtHR in the judgment. The ECtHR acknowledges that the existing summary procedure, and the availability of JR, provides safeguards to ensure the possession claim is lawful and for a legitimate purpose. If the ECtHR had been concerned with possession claims in general, then the lack of availability of JR against private or RSL landlords could have been mentioned as an even greater defect. But it wasn’t.

The ‘procedural defect’ is therefore a lack of ability to scrutinise whether the landlord’s interference with Art 8 rights is proportionate. This can only be the case where the landlord has a human rights duty to act proportionately.

I would be keen to be shown I was wrong, obviously, but I can’t see how McCann can extend beyond public sector landlords. Even if it does, we are back to the issue of statutorily given processes (s.21, mandatory grounds, etc.) and declarations of incompatibility.

Doherty v Birmingham in the Lords will give some clarification, but it is going to be fun in the County Courts for a while.

Possession and human rights - blimey!

Published

on 13 May 2008

in Housing law

. 29 Comments

Just when, post Kay v Lambeth in the Lords, it looked like the issue of human rights defences to possession claims was pretty much settled (i.e. there pretty much weren’t any), the ECtHR has decided to put a large stick in the spokes.

As many people have already emailed me to tell me (alright, four people, all of them lovely), McCann v United Kingdom 19009/04 was handed down today. This is a first hurried look, but this one is going to be big. I can’t link to the case directly. It is on the ECtHR site as a recent case. A word copy of the judgment is downloadable here case-of-mc-cann-v2-the-united-kingdom.

The facts can be dealt with quickly, as they are not, in the end, that important. The applicant and his then wife were joint tenants of Birmingham. The wife made accusations of domestic violence and the applicant was removed by ouster order. The wife and children were rehoused by Birmingham. The applicant moved back into the property. When Birmingham found out, they got the wife to sign a Notice to Quit, ending the joint tenancy. The wife claimed she was not told that this would mean ending the applicant’s tenancy as well. Birmingham then brought a claim for possession against the applicant. The County Court held that there was a breach of Art.8 ECHR in that the applicant’s Art.8 rights had not been properly considered and that Birmingham had apparently induced Mrs McCann to sign the NTQ. Brimingham appealed. The Court of Appeal held - after the decision on Qazi v Harrow [2003] UKHL 43 - that there was no Art 8 defence to the lawful possession proceedings. An attempt at a Judicial Review of the decision to procure an NTQ from Mrs McCann failed as there was no unlawfulness and the decision was properly open to Birmingham. The rest of the issue had already been decided by the Court of Appeal. Permission to appeal refused. The applicant was evicted and brought an application to the ECtHR.

The applicant raised Art 6 - the LA was not an independent tribunal when it brought about the termination of the tenancy. Rejected on the obvious ground that the County Court was the determining tribunal.

The applicant also raised Art 14 discrimination, comparing the LA’s relationship breakdown policy with the policy on domestic violence. Rejected on the obvious ground that DV and relationship breakdown are not the same thing, so different treatment cannot be discriminatory.

But the Art 8 issue went very differently.

It was common ground between the applicant and the Government that:

the property was the applicant’s home (home takes a wide definition, not reliant on lawful tenancy).
the applicant’s Art 8 rights were engaged.

The Government argued that any interference with Art 8.1 rights was justified under Art 8.2. The LA was pursuing legitimate aims, the absolute right to possession was legitimate in a democratic society. The case was distinguishable from Connors v UK (66746/01) as the key features of Connors were i) the vulnerable position of gypsies; ii) the absence of procedural protection - no scrutiny by the courts; and iii) discrimination of domestic law between those residing in private and in LA sites. The LA had merely been seking to regularise the situation in asking Mrs McCann to sign the NTQ. If this was improper behaviour, then Judicial Review was the appropriate course. And, post Kay, public law issues could be raised in the County Court possession proceedings.

The applicant argued that the manner in which the NTQ was obtained was a violation of his Art 8 rights, effectively ending his tenancy with no possibility of challenge.

The ECtHR found something completely different from both. Having reviewed the House of Lords decisions in Qazi and in Kay (and quoting Lord Bingham’s minority judgments in both with evident approval), the Court found that:

the interference with the applicant’s Art. 8 rights was lawful
the interference was in pursuit of a legitimate aim
but the issue was whether the interference was proportionate.

Proportionality is both a factual issue and an issue of procedure. The Court quotes Connors at 81-83 on proportionality and procedural safeguards. It states that it does not accept the limitation of Connors to cases concerning the eviction of gypsies, or to cases where there was a challenge to the law itself. Any person facing the loss of his/her home should, in principle be able to have the proptionality of the measure determined by an independent tribunal, regardless of whether there is a continued right of occupation.

HA 1985 s.84 provides this under reasonableness, but here the NTQ allowed the LA to bypass the HA 1985 procedure, and bring summary possession proceedings under common law. Apparently the LA did this without consideration of the applicant’s Art 8 rights.

The decisions in Qazi and Kay meant that it was not open to the County Court to consider proportionality, save in the exceptional case where ’something has happened since the service of the NTQ, which has fundamentally altered the rights and wrongs of the proposed eviction’ (Court of Appeal decision in Birmingham v McCann).

Judicial review, and by extension public law defences in the County Court did not permit of a consideration of proportionality as JR can only address issues of lawfulness and reasonableness of the LA’s decision. This is not the same as the balancing act of proportionality. There was, in any case, no doubt that the LA had acted lawfully.

There was therefore a procedural breach of Art 8 in that there was no procedural mechanism for the issue of whether possession was proportionate to be considered in the summary possession hearing.

The Court did not accept that a consideration of proportionality under Art 8.2 would be a hardship for the functioning of the system. It would be exceptional for an arguable case to be raised that would require the issue to be considered.

Whether Mrs McCann had understood the import of the NTQ was immaterial. The issue was the lack of any possible consideration of proportionality under summary possession where one joint tenant has served NTQ.

In the Applicant’s case, the Court felt it was doubtful that he would have been any more successful, even if he had had an Art 8 defence. But there was a violation of Art 8 in its procedural aspect.

Well, blimey.

As far as I can see this amounts to a statement that common law summary possession proceedings (at least brought by public bodies) require that a defence of lack of proportionality under Art 8.2 be available.

Clearly this extends beyond the specific facts of this case (end of joint tenancy by NTQ to summary possession claim) to include any common law possession claim brought by a body subject to the Human Rights Act.

Does it go any further?

For the common law, the courts have an obligation as public bodies to behave in accordance with the ECHR, so there is now arguably a duty on them to consider proportionality in common law possessions where the issue is arguably raised. This might include, for instance: possession claims against those in occupation after the death of a tolerated trespasser, who would otherwise have succeeded to the tenancy; or those whose secure tenancy has ended by operation of law (e.g. Malcolm in Lewisham v Malcolm). It would presumably also include possession claims brought against entrenched tolerated trespassers as trespassers (so under common law).

What about other forms of possession against limited or no security tenancies? Possession claims for introductory or demoted tenancies? Temporary accommodation after discharge of duty under Part VII? The effectively summary nature of the possession claims in these cases is given in statute to some degree.

Arguing for the duty to hear an Art 8.2 proportionality defence where there is no provision for a defence at all in statute is going to be a strain on the Court’s HRA duty to interpret statute as in accordance with the ECHR wherever possible. I can see a lot of argument about this. But the direction of the judgment does seem clear - any possession hearing should include the possibility of a proportionality defence being raised, if arguable, at least against a public body landlord.

It is worth noting the the ECtHR takes the s.84 HA 1985 as affording sufficient procedural safeguard for secure possession claims.

But I really need to think about this for longer. Anybody else’s thoughts welcome.

By the way, Garden Court North have a briefing paper on this case now out at their news page - the May bulletin. And Garden Court (south) sent out a press release a day later (14 May) on the ‘decade altering decision‘ and pointing out it was their Stephen Cottle who acted for Mr McCann.

While waiting for Weaver 2

Published

on 2 May 2008

in Housing law

. 0 Comments

The Joint Committee on Human Rights has recommended that the Oftenant regime and the Housing and Regeneration bill extend the scope of the Human Rights Act to Registered Social Landlords. In response to the Housing Federation complaining that this would limit their ability to raise private finance by making them public bodies, the committee said:

there was ‘no basis’ to the belief that giving associations a duty to act in accordance with ECHR rights would change their status from private to public ‘for any purpose other than the applicability of the Human Rights Act’.

So there. But while this is not a bad idea at all, at least as far as it might help with the most egregious forms of RSL behaviour, it is unlikely to make it into the Housing bill at this stage (even though it is being frantically amended).

Post mortem revival of tenancy

Published

on 6 April 2008

in Housing law

. 0 Comments

This is an interesting case that I missed when it came out on Bailii a couple of months ago. It has just been mentioned in Legal Action, so I went to have a look.

Austin v London Borough of Southwark [2007] EWHC 355 (QB) concerned an attempt to revive a tenancy after the death of the tolerated trespasser via an application by the deceased’s brother under CPR Part 19.8 to be appointed to represent the Estate. If the tenancy was revived, the brother would succeed to the tenancy. The brother was facing a claim for possession.

This had seemed to be settled by the Court of Appeal in London Borough of Brent v Knightly [1997] 29 Housing Law Reports 857, which held that the right to apply for a postponement of an order for possession under s.85(2) was not an interest in land capable of being inherited.

Austin, on appeal from the County Court, contended that Brent v Knightly predated the HRA and is not compliant with Art 1 Protocol 1 of the ECHR:

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The proceeding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

The appellant argued that the ability to make a s.85 application (called a Lazarus order in this case) should be a possession under Art 1 Prot 1 and thereby inheritable.

At first instance, the Court had found that this was not a live matter for the purposes of CPR 19.8, but in any case, the Court would not have exercised its discretion to appoint as it was bound by Knightly.

The High Court found that Art 1 Prot 1 didn’t apply; firstly because Knightly does not mean a deprivation of possession, because the tolerated trespasser is dead and can’t enjoy the possession. Secondly:

Article 1 is intended to protect a citizen’s possession from arbitrary interference or deprivation by a public authority. It does not confer substantive rights to property which do not otherwise exist. That is the effect of the decision of the Court of Appeal in Kay v. Lambeth Borough Council [2005] QB 352.

The appellant raised Stretch v UK 2003 and Tettorini v Russia 2005. From the latter:

The court reiterates at the outset that the concept of possessions in the first part of Article 1 of Protocol 1 has an autonomous meaning, which is not limited to ownership of physical goods and is independent from the formal classification in domestic law. Certain other rights and interests constituting assets can also be regarded as property rights and this as possessions for the purposes of this provision.

But the High Court didn’t see that this made any difference to Kay v Lambeth or Knightly. Appeal dismissed.

Given that Knightly was a Court of Appeal judgment, I am guessing that Counsel for the Appellant, Desmond Rutledge, instructed by Anthony Gold, must have planned to take this one upwards from the High Court. One to keep an eye open for.

Article Series - Tolerated Trespassers

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Adverse possession, Art 1 and acknowledgements

Published

on 2 February 2008

in Housing law

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Ofulue & Anor v Bossert [2008] EWCA Civ 7 deals with an adverse possession case prior to the Land Registration Act 2002.

Some notes:

The (then) law on adverse possession does not breach Art.1 Protocol 1, Pye v United Kingdom [2007] ECHR 44302/02 applied. In order not to fall under the Pye margin of appreciation, a case’s results would have to be so anomalous as to render the legislation unacceptable.

Having made a defence to possession proceedings that the occupant is a tenant does not prevent the occupant from having the requisite intention to possess. A person believing himself to be a tenant may still be in adverse possession. The necessary intention is an intention to possess, not necessarily an intention to exclude the paper owner, Lodge v Wakefield MCC [1995] 2 EGLR 124.

A defence that the occupant is a tenant does not constitute an acknowledgement of title for the purposes of s.29 Limitation Act 1980 in that, although there may be an acceptance of title, there is not an acknowledgement that the title holder has a right to possession. Such a defence does not ‘re-start’ the 12 year period.

Also worth reading for an interesting discussion on the admissibility of ‘without prejudice’ correspondence at the end of the judgment.

Human Rights and Possession Claims - looking for the exception

Published

on 13 December 2007

in Housing law

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The latest case to test the Connors, Kay and Doherty formulations on human rights defences to possession cases (see here for previous post, including the comments) has just had its Court of Appeal judgment released. I would assume that Smith (On Behalf of the Gypsy Council) v Buckland [2007] EWCA Civ 1318 is a way-station on the path to the House of Lords. This is also something of a test case for the situation on gypsy site licence possessions after the Housing Act 2004 amendments, which were introduced as a result of the ECtHR judgment in Connors.

So, where are we now?

First, the key human rights point - the possibility of reliance on Art 8 in a defence - is shelved. Jan Luba QC for the appellant perforce recognises that the CoA held in Doherty that Kay v Lambeth meant that such that an Art 8 defence is only possible where there are no statutory protections available against a simple assertion of title. The issue is raised, here as an argument that the first order Judge was wrong to rule out an Art 8 defence where possession was based on common law, not statute, but the CoA declines to consider it and effectively leaves it up to the House of Lords.

Second, the key issue, at this stage, is that the first order Judge ruled out a public law defence, without hearing any evidence.

Third, other grounds of appeal are a) that this case is factually distinguishable from Connors in terms of the appellant’s situation, and b) that is is arguable that the amendment to the Caravan Sites Act 1968 by the Housing Act 2004 does not cure the incompatibility with Art 8 of the Convention, found in Connors.

The basis of the Connors decision
The Court of Appeal is satisfied that the lack of procedural safeguard was the predominant issue in the ECtHR decision in Connors.

The public law defence
This is discussed solely in terms that a decision to bring a possession claim by a public authority is, in the circumstances, something no reasonable person could consider justifiable, following Wandsworth BC v Winder [1985] AC 461.

The CoA adopts Lord Brown’s view in Kay (at paras 208-211) that to bring a public law defence is to acknowledge that the claimant authority is entitled to possession under domestic property law and is therefore an argument that the authority could not reasonably invoke that right. This is a more stringent test than that usually applied when the court considers the justifiability (or reasonableness) of a possession order. It is only in an exceptional case. Lord Brown suggests, that he public law defence will succeed. Connors may have been such a case.

The CoA considers that the 2004 amendment has changed the landscape, affording the court the opportunity to consider the justification of the case for possession at hearing. This makes it even less likely that a public law defence will succeed and in the present case, the first order Judge was right to hold that it was not seriously arguable.

The factual distinction
The CoA points out that this is of no relevance to the court. Nevertheless, while agreeing that the first order Judge was wrong to consider the varying length of periods in occupation as a basis for distinguishing Connors, the Court is not persuaded that it would necessary to decide of the facts of this case and Connors are distinguishable for any future appeal to the House of Lords, but leaves it to the Lords to decide.

The 2004 Amendment
The argument by the appellant is that, firstly, despite the amendment, there is no judicial control of the termination of the right to occupy. Secondly, no special consideration is given to the gypsy lifestyle, as required by Connors - the burden is on the defendant to show why enforcement shouldn’t happen. Thirdly, the court is required to have regard to ‘whether the occupier has failed to make reasonable efforts to obtain elesewhere other suitable accommodation’, which assumes that the occupant may be evicted regardless of substantive grounds. Fourthly, enforcement can only be suspended for 12 months, requiring re-application for further st