Possession and human rights – blimey!

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:

  1. the property was the applicant’s home (home takes a wide definition, not reliant on lawful tenancy).
  2. 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:

  1. the interference with the applicant’s Art. 8 rights was lawful
  2. the interference was in pursuit of a legitimate aim
  3. 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.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Housing law - All, Licences and occupiers, Possession and tagged , , , , .

29 Comments

  1. Crikey, although your link to the case is down right now, I understand the force of this decision. What interests me is why the grounds of JR were perceived to be unlawfulness, when unreasonableness was surely a better candidate, especially as when human rights are involved everything is looked at with so much more scrutiny…

    What impact will this have on future cases, though? Large? Small? I don’t know the volume of cases that fall under this vein, so the perceived impact is probably different from your end…

  2. Joe. Sorry anout the link, bloody stupid session based database won’t allow direct links. I’ve downloaded a copy and linked to that – see above.

    The ECtHR does consider JR in terms of lawfulness and reasonableness, but found that ‘reasonable’ in JR terms is not equivalent to a consideration of proportionality – no balancing of interests. In this case, the LA were behaving lawfully and their actions were for a legitimate reason, as noted by the ECtHR, and that would probably satisfy a JR. This may well be a view one could argue with.

    On the other hand, ‘reasonableness’ in possession claims under s.84 HA 1985 does involve such a balancing act.

    I don’t see how a JR in the circumstances of this case could have addressed human rights issues.

  3. Thanks for the link, I got the impression from your article that HR was used as a tool, rather than a reason – I now see that they were claiming an Art8 breach. I also didn’t realise that the ECtHR didn’t take into account reasonableness – although I probably should have seeing as how it finds its roots from Wednesbury 1948, a British case…

  4. Heya Nearly

    Could you expand on ‘Proportionality is both a factual issue and an issue of procedure’ in regards to what sort of things should be looked at when a public body doesn’t need the tenant to be at fault to gain possession.

  5. OK – the principle is that any interference with Art 8 (or other) rights should be lawful, for a legitimate purpose and proportionate to achieving that purpose. What the ECtHR is saying here is that the legal process under which the interference with the rights takes place must be able to address all three issues.

    A summary possession claim has a possession hearing – so the lawfulness of the process is scrutinised. Legitimacy of purpose can be addressed either by JR or by public law defence to possession claim in the county court. But the common law summary possession procedure, post Qazi and Kay, did not enable issues of proportionality to be raised. Thus there was an issue of procedure – at no point could whether the claim for possession was, in the specific circumstances, proportionate to the legitimate aim be considered. (This is assuming that one accepts that the ECtHR was right that judicial review on grounds of unreasonableness could not achieve this – and I think that this is probably right, but I’m not certain.)

    Hence the ECtHR finding that summary possession claims must, at least in principle, be able to allow and hear a defence that possession was not proportionate to the legitimate aim of the LA and thus was in breach of Art 8.2.

    Some think that the judgment may imply a duty on the LA to consider proportionality under Art 8 before making a summary possession claim. Personally, I’m not sure I see a duty to do so, such that a failure to consider it would be something to be raised as part of a public law defence or even JR, but I can see that it would be wise for LAs to do so, both because they may face the Art 8.2 defence and because it is something that they just really should do.

    Summary possession claims take place either where a secure tenancy has already been ended (one party terminates a joint tenancy; or by operation of law – the tenant has done something in breach of the conditions of a secure tenancy under HA 1985, e.g. illegal sublet, not principle residence etc.); or where there was a non-secure tenancy in the first place, e.g. some temporary accommodation under Part VII. Basically, wherever the tenancy is legally ended by a Notice to Quit, rather than by Notice seeking Possession and Possession Order.

    What proportionality would amount to ‘in fact’ is entirely fact dependent (sorry). It would have to be something pretty far out of the usual to mean that it was not proportionate to grant a possession order, as long as the process was lawful and the aim legitimate, which, with LA housing management at stake, it usually will be.

    A possible (but untested) example that springs to mind would be summary possession against someone who would be able to bring a successful homeless application once possession was granted. As you can imagine, the circumstances in which this would be the case will be quite to very limited.

    Does that help? I could, of course, be very wrong in my interpretation.

  6. Cool thanks. I like the example you give. Seems to make sense to a lay person! I look forward to reading other people’s opinions. I was rather confused about the JR bit but that’s hardly suprising as I can’t even make an application for one and that’s what referrals are for! Still nice to have some grasp of the subject. Will have to read the judgement again and again.

    My Defending Possession Proceedings bible needs an upgrade with some of these recent cases :)

  7. Nearly,

    Bad choice of words, I meant to comment on how you say that the ECtHR uses proportionality rather than reasonableness in their JR proceedings. This would be because the whole premise of unreasonableness is from a British case, Wednesbury 1948:

    “so unreasonable that no reasonable authority could even have come to it” – Lord Green in Wednesbury.

  8. Also, to House:

    Proportionality, its a horrible idea, but it is necessary – one looks at the situations surrounding the breach of ANY ECHR article right – basically proportionality is how necessary it was for the breach, whether the breach was an appropriate response in the situation and so on.

    When it gets nasty is when we talk about constitutional freedoms and so forth – the state can PURPOSELY violate human rights, if they think it is the proportionate response. Read the case of Brogan vs UK 1988(11 EHRR 117) – someone detained for ‘suspected acts of terrorism’ (he hadn’t actually committed an offence) took the UK to court over Article 5 rights. He lost, naturally.

    (My dissertation on authority & justice is already coming in useful – huzzah!)

  9. Well, this certainly could be an interesting case but it all rather depends what their Lordships make of it when Doherty v Birmingham CC is heard later this year. A few (preliminary) points:
    (a) it is not a particularly well-written judgment, even by the “cut and paste” standards of the ECtHR. In particular, the Court says (at [59]) that “it is far from clear that, had a domestic tribunal been in a position to assess the proportionality of the eviction, the possession order would not still have been granted. Yet, as they point out (at [14]), Mr McCann had been entirely successful at trial and the county court judge had held it was disproportionate to seek possession!
    (b) the applicant did not argue that a summary possession procedure was unlawful per se. Rather (see [32] and [43]) the focus was on the “way in which the council procured the notice to quit” which, on any view, was at least through sharp practice.
    (c) the ECtHR does not say – in terms – that a proportionality argument must give rise to a defence. Rather they say that the defendant should “be able to have the proportionality of the [eviction] determined by an independent tribunal…” (at [50]) This could equally easily be done by a claim for damages and / or declaration of incompatibility.

    In practical terms, it is, however, clear that an occupier should be able to raise proportionality as an argument in the county court in addition to the two other arguments (traditional JR grounds and seriously arguable case that the underlying law is not compatible with the HRA) that Lord Hope, for the majority, set out at 110 in Kay.

    This shouldn’t be particularly controversial. Proportionality has been emerging as a free-standing ground of challenge in JR cases for some time (See, for example, R (Association of British Civilian Internees (Far East Region)) v Secretary of State for Defence [2003] EWCA Civ 473, [2003] 3 WLR 80 where the Court of Appeal observed that “the Wednesbury test is moving closer to proportionality…”)

    However, what will be the impact of a successful proportionality ‘defence’? The occupier will be left as a tolerated trespasser, albeit one without the possibility of revival. That cannot be a desirable state of affairs.

    Lets see what happens. Lawyers are sure to do well out of it though!

  10. J, thanks as ever. I agree the judgment isn’t very well written – and I’d noticed the apparent contradiction. I suppose the County Court judgment was not solely based on proportionality but on the method of obtaining the NTQ, which is not relevant to the ECtHR judgment, but that is pretty thin as a justification.

    On b) I agree – as I noted the judgment held a completely different argument to that advanced by either applicant or respondent.

    On c) Not sure about that. If the court found that the eviction was not proportional, how could the eviction (even if compensated) not be a breach of Art 8?

    I suspect that the domestic courts will look to limit this pretty quickly. But Doherty in the Lords should address McCann head on.

    Any CLP people care to comment?

    I’m posting again on musing on McCann shortly.

  11. I was just toying with something in (c). In DDA cases we can, of course, counter-claim for damages for unlawful discrimination and this will remain open to us even if (as we all suspect) Malcolm decides that we can’t use the DDA as a defence per se. Can something along similar lines work with the HRA? The eviction may be disproportionate but the just satisfaction (Art. 41) is provided by damages rather than by creating a defence?

    I’m not sure if it works, I’m just thinking aloud!

    I’d be surprised if the domestic courts do look to limit this. We’ve now had two ECtHR cases (Connors and McCann) which have, in turn, doubted the majority in Quazi and Kay. I’ll put good money (well, a legal help fee!) on Doherty deciding that we’re now all to follow Lord Bingham’s approach in Kay.

    If there is to be any resistance on the part of the Lords I suspect it will be due to concerns about how this will operate in the private sector. Can a DJ now deal with proportionality on a s.21 case? If McCann is right then the answer surely has to be yes.

    Very interesting times. Although both Lord Bingham in Kay and now the ECtHR in McCann plainly think that it will be an exceptional case before proportionality makes much difference. Nothing for landlords to be too scared about… yet!

  12. J, we’ll have to see how Malcolm in the Lords deals with the ‘court aiding an unlawful act’ issue.

    When I said limit, I meant keep it to certain situations – but yes, probably the Bingham approach. I’ll have to re-read that judgment. I would say that private tenancies would be one of limits – I’m going to have more to say on this, but I have been thinking about it and so far I am not convinced that McCann extends beyond possession claims by a public authority.

  13. I’m sorry if I’m being really thick here, but this is a complex one and I am getting overwhelmed thinking about the possibilities in McCann and where it could lead. I may, in my confusion be missing a really obvious point.

    If a housing association, who are not at the moment a public body, are taking action against someone under common law, would the courts have to consider proportionality independently of the applicant?

    if so would the housing association have to build a proportionality argument into their application, even though technically speaking, it is not their problem?

    I think I need to lay down

  14. Pingback: Blawg Review #160 « Ruthie’s Law

  15. Excellent. I know that housing associations have ground 14a at their disposal, but in my experience they tend to do what Birmingham did in McCann to save time and costs.

    A further implication occurs to me about this though. The impact on unlawful sub-tenancies, where they have been let by either council or housing association tenants. The mesne tenant no longer occupies as their sole or principle home, bringing in common law avenues for eviction of both parties. Which, given the McCann argument, similarly suggests an ECHR defence for both parties.

    Wow. This is certainly a cat/pidgeon scenario. Since the N28 debacle you cant say that housing law has been boring

  16. Whilst it’s certainly not boring it really shouldn’t be this complicated. Whilst I agree it is a fascinating subject I’d much rather it be far more simple for the sake of both landlords and tenants (and well my brain to).

  17. Ben,

    In the illegal sublet scenario, I’m really doubtful that the McCann argument would extend to the illegal subtenant – the LA doesn’t have to bring possession proceedings against the illegal subtenant, after all, just the head tenant.

    Even it did apply to the subtenant, a situation in which eviction would be arguably disproportionate would be vanishingly exceptional.

  18. Hi Nearly? When I worked as Tenancy Relations Officer for Lewisham council, I got involved in loads of unlawful sub-lets of council properties. Always advising the neighbourhood housing teams that they had to evict their tenant and the sub-tenant on the same application. The sub-tenant, admittedly, having no defence to proceedings.

    My argument was always that they could not take action against the sub-tenant whilst leaving their person in possession.You say that the LA doesnt have to bring proceedings against the sub-tenant. Are you suggesting that they can do a lock change on them? My argument was always strongly that they couldnt.

    The landords in such cases, when they know of the sub-letting, usually send out papers to the named Tenant and ‘Any other occupiers’ to place the sub-t’s on notice that action is going ahead. When defending such possession proceedings I have used county court rules to get the sub-t joined to the proceedinsg so that they can have a right to speak and therefore, buy time to find somewhere else.

    This is why I think that McCann case could open a proportionality defence for the sub tenant. The common scenario being that the council’s tenant vacates in order to sub-let. So by defintion is not occupying as sole or principle home and therefore goes into tenancy limbo. The sub tenant has obtained the property (in Lewisham, often through a high street accommodation agency) in all good faith and is given an AST on payment of deposit and rent in advance. Who now has the greater defence, given the proportionality factor? Or is this where the pursuit of a legitimate aim bit kicks in?

  19. Ben, I put it badly. What I meant was the claim for possession is against the head tenant. The sub-tenant’s occupation relies on that of the tenant. So no separate possession claim is or needs to be brought against the sub-tenant. Whether the ECtHR would count this as a procedural defect would have to be a matter for another case, I think. As you say, the sub-tenant is, at best, joined to the claim, but not as defendant. The sub-tenant’s recourse is, in the first place, against the tenant and no Art 8 considerations would apply there, or so it appears.

  20. Yes, I get your point. But I still think there could be an anomoly in cases of this kind. I accept that I’m sort of thinking out loud on this, with no definative answer.

    Consider this proposition. A secure tenant vacates to sub-let, givng rise to what is probably a non-secure tenancy. So Section 83 proceedings are unnecessary and a standard NTQ will be sufficient for the LA. The sub-tenant however, may well HAve a valid AST, or even Assured, or, god forbid, pre 88 act, a protected tenancy, depending on when they moved in. So the sub-tenant may now have greater security than the council tenant who gave it all up.

    I am not convinced, as I think my way through this bloody tortuous argement, that the sub tenant’s occupancy is solely determined by the council tenant’s security, insofar as if the council terminates it, it would automatically end the sub-tenant’s security under the legislation that creates it.

    If, as I have argued in the field, on many an occasion, (and I accept that maybe it was a lucky blag) that an AST created by a dodgy council tenant, acting as a landlord is a valid agreement, based on landlord status and date of tenancy.Does that give the sub-tenant greater security than the recently vacated council tenant? Which, consequently brings us back to McCann and proportionality

  21. Ben, I see where you are going, but surely this is a classic land law issue – the sub-tenancy is only as good as the head tenancy. So the sub-tenant might have a valid AST against the head tenant, but only so long as the head tenant holds an interest in the property (so pre-NTQ, where a common law tenancy still exists for the tenant. After NTQ, I doubt that the now ex-tenant is capable of creating a valid interest – the ‘landlord’ cannot give what they have not got).

    Sure, the AST is breached when the head tenant loses the possession claim – if not earlier – but that is a problem for the sub-tenant and the head tenant, not the Local Authority landlord. Unless, of course, the Local Authority has explicitly or knowingly condoned the sub-tenancy.

    The sub-tenant’s recourse is, as far as I can see, only against the tenant, in contract, in the same way as an AST tenant who was given a tenancy by a landlord who knew the property was to be repossessed by a mortgage company.

    Granted that the property could be considered the sub-tenant’s home, but it is not the LA that is the cause of their eviction – it is the tenant as landlord.

  22. Yes that clarifies it for me, particularly the last sentence.

    As a matter of interest, on the same point, I did, on several occasions encounter situations where the neighbourhood office found out about sub-lets and told the head tenant that they had to evict the sub-tenant, if they wanted to keep their home. harassment and threats of illegal eviction ensued and I was called in. Dodgy or what

  23. Doherty is my colleague Chris Johnson’s case but this is his last day before he goes off on holiday, with the usual associated madness, so, just for info, Doherty was heard by a panel of five Law Lords in mid March. Speeches were not delivered before McCann. They have now invited written submissions in the light of McCann by 2nd June. Can’t say much more than that at the moment.

  24. Many thanks, Rosaleen. I didn’t know that the Lords had already heard Doherty. The inviting of submissions on McCann is intriguing – someone is going to be having fun before 2 June!

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