Tag Archive for 'summary possession'

Not seriously arguable

Published
by
NL
on 13/07/2009
in FLW case note, Housing law - All, Licences and occupiers and Possession
. 0 Comments

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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Kay re-stated

Published
by
NL
on 23/06/2009
in FLW case note, Housing law - All, Licences and occupiers and Possession
. 1 Comment

And the question of what Doherty actually means rumbles on.

Central Bedfordshire Council v Taylor & Ors [2009] EWCA Civ 613 was the Court of Appeal hearing of an appeal from a Circuit Judge’s decision to make an outright possession order and, in particular, to refuse to make findings of fact as a basis for an appeal based on Article 6. The appeal had a complicated history, the original decision was made before Doherty in the Lords was handed down and the grounds for appeal prepared in anticipation of the Lords decision, then revised afterwards from being based in the minority decision in Kay to argue a Doherty gateway B public law basis.

Since then, the Court of Appeal has decided on Doran v Liverpool CC [2009] EWCA Civ 146 (our report) and McGlynn v Welwyn Hatfield BC [2009] EWCA Civ 285 (our report), further shaping the landscape.

The facts in the case were not dissimilar to Kay. In 1993, Bedfordshire CC (as was) had leased land and dwellings to Luton for 3 years with a sublease to a housing association for assured shorthold tenancies. Lengthy negotiations over a new lease fell through and in 2007 Bedfrdshire commenced possession proceedings. Some occupants of the properties defended on the basis interference with Article 8 rights such that it was a breach of Art 6 to bring possession proceedings. The dismissal of this defence was what was appealed.

The issue before the Court of Appeal was given as how should County Court judges approach situations similar to Kay, post Doherty. Has the position changed such as to afford a possible defence to such a situation. Is it arguable that circumstances were such as to impose on the Council a duty to consider the personal circumstances of the appellants? And is the test something like Wednesbury rationality or something wider?

In the main judgment, Waller LJ considers Doran and McGlynn, in particular in view of their holding that a public law consideration wider than the Wednesbury rationality test was appropriate and, in McGlynn, an arguable defence based on the Council’s failure to carry out reasonable further investigations. But these cases concerned termination of a lease or licence (McGlynn), or statutory duties (Doran, Doherty). In this case, as in Kay, the occupants are trespassers and the Council has an undoubted right to possession.

The question is therefore has the decision in Doherty impacted on Kay. Waller LJ adopts Toulson LJ’s analysis of the decisions in Doherty set out at paras 15-22 and 48-52 of Doran, to the effect that the public law defence is not to be confined to traditional Wednesbury grounds – ‘there is no formulaic or formalistic restriction of the factors which may be relied on’ and personal circumstances are not necessarily irrelevant. However, this does not address the situation where the facts are so close to Kay.

The Council submitted that Doherty did not suggest that the decision in Kay, on the facts, would have been any different. In regard to trespassers, an authority with immediate right to decision had no obligation to consider the personal circumstances of the occupants. Even on the view of the minority in Kay, it was unarguable that a council acting reasonably would have done otherwise than seek possession.

The Secretary of State, intervening, suggested that the matter should be remitted to the County Court so that the appellants’ arguments could be fully considered and the appropriate facts found. However, it would be wrong to remit if it would serve no purpose or, if there was to be a remittance, without guidance.

For Waller LJ, Lord Hope’s ‘further explanation’ in Doherty of his statement of gateway b in Kay is noted, but his endorsement of the Qazi principle that ‘a defence to a possession order which does not challenge the law under which it is sought but is based only on the personal circumstances should be struck out’ at para 42 of Doherty is to be taken as saying that Kay would still be decided the same way. Lord Hope’s qualification of that principle must be seen in the context of the facts and law of Doherty.

While the re-interpretation of para 110 does have general application in its loosening of the restrictions on the factors able to be considered in review, Doran itself concerned similar facts to Doherty. Where Waller LJ differs from the view of Toulson LJ in Doran is on Toulson’ holding that the facts at issue were those at the point of the original decision and indeed that the decision to seek possession is the relevant decision to challenge. Waller LJ instead holds that a council may make a series of decisions as facts become known to it, up to the point of the hearing itself. If any of those decisions was shown to be ‘unreasonable’ it could be attacked.

But in the present case, this makes little difference. Where the facts are similar to Kay, a court, post-Doherty, will actually be in much the same position as it was even before the convention became law [para 42].

Waller LJ accepts that whether the decision of a local authority is ‘reasonable’ post-Doherty goes beyond the question of what is rational. A local authority should take account of the personal circumstances of an occupier known to it. But it does not follow from this that there will ever be circumstances in which it will be unreasonable to seek possession against trespassers in situations similar to Kay, where, as here, the occupants are not initially known to the authority or have any relation with it. The law allows for a period of time to bring the possession order into effect and this is sufficient.

Even where the local authority was aware of the personal circumstances of the occupiers, their obligation to take account of them could never make it unreasonable to take proceedings for possession [para 45] as the authority has an absolute right to possession. Personal circumstances are only relevant to postponing execution. There was therefore no reason to remit the case to the County Court. Appeal dismissed.

Lloyd LJ concurs. The proper decision for review in this case was the decision to pres for trial of the possession claim, once the circumstances of the occupiers had become known to authority. Accepting for the moment the appellants’ account of the facts and their circumstances, it would still make no difference. Following Lord Bingham at para 47 of Kay (and Lord Bingham was in the minority) where the pleaded facts give no special claim to remain, there is no duty to accommodate and the authority has an unqualified right to possession, possession orders would necessarily be made. There was no need to remit in this case and appeal dismissed.

Richards LJ concurred.

So there we are, for the moment at least. Post-Doherty defences do not apply to a Kay situation, where the local authority (or public body, including RSLs, post Weaver) does not have any relation to the occupiers, the occupiers are trespassers and the authority has an unqualified right to possession. Unlike termination of a lease or licence, or where a statutory duty is involved, the defence cannot succeed, with the possible exception, pace Lord Bingham, of where the facts give rise to a special claim to remain.

Now, what would this mean for ‘failed successor’ cases? McCann involved termination of a tenancy and a case like that would clearly potentially have a public law defence in Doherty form, but a failed successor? Or ’successor’ to a tolerated trespasser (prior to 20 May 2009)? We’ll have to see, but the argument is surely that Kay would apply, absent some particularly egregious behaviour by the authority.

My guess is that this will be headed to the Supreme Court, but for the moment, public law defences would seem limited to those who have or had some contractural or statutory relation to the authority in their accommodation.

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"Something of a mess"

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

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

The history

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

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

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

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

s.49A Disability Discrimination Act 1995

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

Article 8 and possession proceedings

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

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

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

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

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

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

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

The decision

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

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

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

Where does that leave us?

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

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

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

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

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Public Law Defence – an arguable case

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

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

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

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

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

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

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

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

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

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

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

So to the Court of Appeal.

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

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

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

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

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

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

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

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

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

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

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

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

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The Irish Doherty?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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The difference in Doherty?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Appeal Dismissed. LJs Aiken and Jacobs concurred.

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

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

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

Guidance by Toulson LJ

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

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

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

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

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Expanding the Public Law defence, a bit

Published
by
NL
on 21/12/2008
in FLW case note, Housing law - All, Licences and occupiers and Possession
. 4 Comments

What Doherty v Birmingham City Council (Secretary of State for Communities and Local Government intervening) [2008] UKHL 57 actually means for a public law defence to possession claims, particularly summary possession, was the subject of London Borough of Hillingdon v Collins & Another [2008] EWHC 3016 (Admin). This is what was to have been a CMC in the Administrative Court, but turned, by the nature of circumstances, into a consideration of the scope and boundaries of the post Doherty defence. As we’ve previously noted, the House of Lords in Doherty did little to actually make things clear, so Hillingdon v Collins is an important judgment.

The case involved possession of caravan sites occupied by travellers on the basis of (minor) rent arrears and allegations of harassment and ASB, following service of Notices to Quit. The defendants filed defences, giving as grounds a mix of reasonableness issues for eviction, Art 8 rights being engaged, the Court to assess LBH’s reasons for seeking eviction under Art 8, disproportionality, denial of accusations of ASB, and incompatibility of summary proceedings.

The proceedings were transferred to the Administrative Court and stayed pending the appeal in Smith (On Behalf of the Gypsy Council) v Buckland [2007] EWCA Civ 1318. Following Doherty, the Defendants sought to amemd the Defence and Counterclaim to the following grounds, dropping the incompatibility point:

(a) Smith v Buckland is not binding with regard to Article 1 of the First Protocol

(b) Those rights were engaged when the Notices to Quit were issued and in these proceedings

(c) LBH , as a public authority, was required to act proportionately and the Court had to consider if a fair balance was struck;

(d) Notwithstanding the decision in Smith v Buckland the lack of an ability on the part of the Defendants to challenge the factual basis for a possession order is incompatible with Article 1 of the First Protocol

(e) The difference in treatment between dwellers on sites for gypsies and dwellers on other sites was discriminatory

(f) It was for LBH to evaluate the effects of the taking of proceedings, and the lack of alternative provision, and the Court should consider whether it had done so.

Judge Gilbert QC notes that these proceedings post-date the introduction of a consideration of reasonableness in making a decision whether to suspend a possession order made under the Caravan Sites Act 1968 (as amended by Housing Act 2004 in response to Connors). However, there is no option but to make the Order, until the HRA 2008 provisions come into force. Factual considerations can be addressed in the context of reasonableness in a decision to suspend or not, but not otherwise. And so, to Doherty…

Judge Gilbert then embarks on a consideration of Kay, Buckland and Doherty, quoting at length. From Doherty, he quotes extensively from the speeches of Lord Hope and Lord Walker. In Lord Hope’s speech, para 57 in particular is noted as introducing an additional element to the post Kay ‘gateway b’ public law challenge:

It will be for the judge to resolve any dispute that he needs to resolve about the facts and, having done so, to determine whether the decision to terminate the appellant’s licence on the grounds stated in its particulars of claim, and having regard to the length of time that the appellant and his family have resided on the site, was reasonable [Doherty para 57].

Lord Walker’s speech, cited at length, is taken to show:

(a) His speech, and the reasons for his sense of unease, bears out the point that the effect of Kay and of Lord Hope’s application of it in Doherty is not to enable scrutiny of LBH’s decision to obtain possession in the context of ECHR/Article 8;

(b) He confirms that the Kay gateway (b) test has broadened so that it narrows (without closing) the gap between HRA grounds and traditional judicial review grounds.

(c) He draws attention to the wisdom of having such a case heard in the County Court.

Judge Gilbert QC’s conclusions are that:

54 I consider that the effect of the speeches in Doherty is to widen the scope of the enquiry that may be made into decision making by an authority. I do not consider that the effect of the amendment of section 4 in 2005 undercuts the points of principle which are established in Doherty but I do consider that , as per Smith v Buckland, the fact that Article 8 can operate at the stage of considering whether or not to evict, still gives it effect within the domestic law framework when taken as a whole, as per Smith v Buckland. However I also consider that in the light of Doherty the observations in Smith v Buckland that the circumstances where such a defence can be made out as wholly exceptional have been overtaken by subsequent authority. They were justified on the basis of the previous Kay test, but not on the wider one which now encompasses a broader consideration of reasonableness.

55 I also consider that the test is no longer whether the claim on public law grounds is ” seriously arguable.” It is now , as per Doherty at paragraph 55, whether the decision was reasonable, in the sense of whether no reasonable person would think that recovering possession was justifiable.

56 I also consider in the light of Lord Hope’s speech that a judge, while he must eschew simply substituting his own judgement for that of the local authority, must grapple with whether it had material before it, and whether the decision was reasonable. He is not bound to consider the matter on paper, but has a discretion as to how he should conduct the hearing, within the limits set by Lord Hope’s speech. I draw attention also to paragraph 54 of Lord Hope’s speech, and the importance of the claimant authority justifying its decision to seek possession, and to his reference to Lord Brown’s concerns..

57. That approach has other practical effects:

(a) it will help the judge when he gets to the stage of considering whether or not to suspend possession. As already noted, at that stage he will have to weigh the case in favour of suspension against the case for it. Of course the fact that LBH will have a right to possession is a matter which must attract weight, but the degree of weight depends on many other factors, and since that is the relevant stage at which to address Article 8 issues, then proportionality will be of significance. An order for possession sought because an occupier is one month behind with the rent is a far less powerful one than one where the arrears have amassed over six months. An occupier who has been engaged in one drunken act of disorder during a row with his neighbour may be regarded as much less culpable than one who has inflicted serious physical harm and engaged in numerous threats. I do not intend to set out a prescriptive list, as there is a wide variation of relevant circumstances, and a wide variation of potential weight that can be ascribed.

(b) I regard it as artificial to have one judge address whether the authority acted reasonably when considering the wider Kay approach, and another one then addressing that issue again, or at least a closely related issue, at the suspension stage. I follow Lord Walker’s reluctance to see an Administrative Court judge having to hear oral evidence in a forum unsuited to it. There is no better tribunal, nor one more experienced in dealing with disputes of this kind in housing cases, than an experienced circuit judge sitting in the county court. I express the view that this matter should be heard by a circuit judge with experience of possession disputes.

The matter was remitted to the County Court, to be heard by a CJ with possession experience and directions were given for disclosure and witness evidence.

So Judge Gibert QC takes Doherty as confirming that a public law defence (on JR grounds) and a human rights defence have not been fused, so that consideration of the LA’s decision is not a scrutiny in the context of Art 8 (or other Article). The defence has clearly been taken here as extending to issues of fact in assessing whether the decision to bring proceedings was reasonable (in the sense that no reasonable person would consider it justified, not Wednesbury grounds). The proper venue is the County Court, but we knew that – although the direction for a CJ to hear it is interesting.

This is not a surprising version of Doherty, but it is, I think, quite a conservative one. Even in Lord Hope’s speech, here taken as the lead one, there are suggestions that proportionality is at least akin to a JR ground. But Judge Gilbert QC keeps a consideration of proportionality firmly out of a ‘gateway b’ public law defence, in favour of a quasi new ground of reasonableness defined as ‘a decision that no reasonable person would consider justified’.

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A Post-Doherty Appeal?

Published
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NL
on 17/12/2008
in Housing law - All, Licences and occupiers and Possession
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Doherty v Birmingham CC [2008] 3 WLR 636 left us all wondering about the form and limits of a challenge to summary possession proceedings. My attempt at smuggling proportionality into a public law defence settled, for instance -good for the client, rather frustrating for me.

But now we have  Bedfordshire CC v Taylor & Ors [2008] EWCA 1316 to look foward to. This was an application for permission to appeal to the CoA that started as a defence in the County Court, on Article 8 grounds, to a claim for possession by the LA freeholder against trespassers (apparently on similar, but not identical, facts to Kay v Lambeth). The defence was initially based on, as the Court of Appeal puts it, ‘the hope’ that Doherty in the Lords would adopt McCann v UK.

Post Doherty, the appeal was pursued on the grounds that

it is said by the appellants that the decision in Doherty adds a material gloss to Kay; in particular, it is said that, contrary to the majority decision in Kay, it now enables the personal circumstances of the defendants to be taken into account in assessing the proportionality of a decision by a public authority to recover possession of property.

Permission to appeal given, with no suggestion that the appellants should expect success. An Art 8 appeal per se refused under Kay v Lambeth.

As this is one, but far from the only, post Doherty boundary to test, this will be an appeal to watch. Pierce Glynn and David Watkinson for the appellants.

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Notes on Doherty v Birmingham CC

Published
by
NL
on 30/07/2008
in FLW case note, Housing law - All, Licences and occupiers and Possession
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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?

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Wondering about McCann

Published
by
NL
on 18/05/2008
in Housing law - All, Licences and occupiers and Possession
. 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.

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