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 ).
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 ). 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  AC 461
(b) that Article 8 could not be relied upon to defeat a proprietary or contractual right to possession – Harrow BC v Qazi  1 AC 983
(c) that decision had been doubted by the decisions of the European Court of Human Rights in Connors v UK  40 EHRR 185 and Blecic v Croatia  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  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  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  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.
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 ).
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 )
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  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.