The House of Lords decision in Kay v Lambeth [2006] UKHL 10 addressed Human Rights defences to possession claims, attempting to unify Harrow v Qazi [2004] 1 AC and the subsequent European Court judgement in Connors v United Kingdom [2004] 40 EHRR 189.
Qazi effectively ruled out a human rights defence to possession based upon Article 8 where domestic law had been complied with.
Article 8 of the European Convention on Human Rights provides that
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Qazi effectively said that any possession claim made in accordance with domestic law satisfied 8.2.
Connors concerned an eviction of a gipsy family under a statutory procedure that required no reasons to be given by the local authority and no examination by the Court. The European Court held that the power to evict without giving reasons to be examined by a tribunal had, in this case, not been shown to satisfy 8.2. Moreover the legislation that enabled this did not give the requise procedural safeguards (there have since been amendments to change this). There was a positive obligation to consider the needs and lifestyle of gipsy families, both in legislation and in particular cases.
So, Connors apparently re-opened possible Article 8 challenges via two routes, a failure by a public body to consider the particular circumstances of the occupier where that should have been considered, and the incompatibility of legislation with Art. 8.
Kay v Lambeth, by a 4 to 3 majority, appeared to decide that the issue in Connors was solely that of the law itself, such that the only possible Art. 8 challenge was to whether the law under which possession was claimed met the Art. 8 requirements in terms of interference with the right to respect for the home. The assumption that the County Court should make was that if the interference was permitted under domestic law, it met those requirements. In some exceptional cases, such as Connors, it may be that the statutory procedure should ensure that special consideration is given to Art. 8 rights and this is a matter of statute. The minority considered that there may be exceptional cases where the particular personal circumstances of the occupier may give rise to an Art. 8 defence.
The upshot of Kay therefore appeared to be that any Art. 8 defence had to be that the law was incompatible with the ECHR. Either the County Court would attempt to give effect to the law as best it could in accordance with Art. 8 or the matter would be sent to the High Court for consideration. At best the result would be a declaration of incompatibility, which, as the statute would still stand, still wouldn’t help the occupier who would still have possession granted against them.
This view has now been tested in the Court of Appeal in Doherty v Birmingham CC [2006] EWCA Civ 1739, which concerned a summary order for possession. The Court of Appeal take a lengthy and considered comparison of the six reasoned judgments in Kay v Lambeth and settled on the ‘majority’ view as set out by Lord Hope.
Both Kay and Doherty though, do confirm that public law defences are available in County Court possession hearings, at least against public bodies. So anything that might be a ground for judicial review of the decision to take proceedings can be raised as a defence to a possession claim by a public body. It seems this is now the only way in which individual circumstances could be raised where possession procedures don’t alow them to be addressed by the County Court.
What does that leave for Human Rights challenges? Not a lot, I think.
Possibly in Connor style termination of licences for Gipsy/Traveller cases, where there are strong merits. But the specific law in Connor has been amended to give some discretion to the Courts, so a duplicate challenge may now fail.
In an article in the May 2006 LAG, after the decision in Kay, it was suggested that a challenge to Ground 8 1988 Housing Act claims may be possible, at least where arrears are solely due to housing benefit errors. I’m not sure about this, for two reasons. Firstly, this looks like considering specific personal circumstances in relation to housing benefit, and secondly, because the challenge would surely have to be against Ground 8 as incompatible with Art. 8 tout court, against an absolutely express intention of parliament. Plus, of course, it wouldn’t benefit the occupier who would still have possession given against them. (It may be that a putative public law defence would be an option here: Housing Association as a functional public authority and making an unreasonable decision to pursue a mandatory ground in view of housing benefit issues. The Housing Corporation guidance on ground 8 could help here. But this is also untested).
Whilst on the Housing Act 1988, the other big ground of non-discretionary possession, this one against private tenants – s.21 Notice and the accelerated possession procedure, might similarly lack procedural consideration of circumstances, but this one has already been tackled and dismissed by the Court of Appeal in Donoghue v Poplar Housing [2001] EWCA Civ 595.
No doubt there will be further challenges, but given Doherty’s confirmation of the majority view in Kay, these are likely to be in quite exceptional areas. Mainstream possession claims, where in accordance with statute and the law, are beyond human rights defences.