Safe European Home*

We noted J. L. v the United Kingdom here. Now there are two further English possession cases at the ‘questions to the parties’ stage of the European Court of Human Rights.

Birch and Others v UK Application no. 26393/10

Birch arises out of possession proceedings brought by Bedfordshire DC on a property which had been leased, short term, to a housing association which had, in turn licences a co-op group to grant assured shorthold tenancies to occupiers on its behalf. The lease had been granted in 1993 and expired in 1996. It was not renewed but negotiations went on and the co-op continued to grant ASTs to occupiers. In 2006, Bedfordshire brought possession proceedings. The judge granted possession, considering himself bound by Kay v Lambeth, and refused to consider the art 8 defence. The Court of Appeal dismissed the appeal on the basis that the facts were those of Kay rather than Doherty (our report here). The Supreme Court refused permission.

Since then, the applicants have all moved out, some into private accommodation and some homeless, with some suffering physical and mental health consequences. The property remains undeveloped and empty.

The ECtHR notes the recent history of Pinnock and Powell and poses the question:

Was the interference with the applicants’ respect for their home, within the meaning of Article 8 § 1 of the Convention, necessary in terms of Article 8 § 2?

Wilkes & Wilkes v UK Application no. 56387/07

The Wilkes had an introductory tenancy from Blackpool BC. Following complaints involving some 57 incidents of ASB, including allegations of violence, threats to neighbours and council officers and an incident of indecent exposure, Blackpool served statutory notice to terminate the tenancy, on grounds of ASB in January 2007. The Wilkes requested a review of the decision to seek possession. The review panel consisted of a five-member panel of the Employment and Appeals Committee made up of elected councillors who had formed no part of the original decision-making process. the Wilkes did not attend, but via a solicitor, sent a letter admitting many of the incidents alleged. On 5 February 2007, the panel decided the decision to seek possession was justified. Possession proceedings began two weeks later. The defence was art 8 and an argument that the review panel was not impartial or independent so that there was a breach of article 6.1. There was also a public law defence.

At trial, the Recorder found that the public law defence had no realistic prospect of success and summarily dismissed it. On the human rights defences, the Recorder considered himself bound by R (McLellan) v Bracknell Forest Borough Council and Reigate and Banstead Borough Council v Benfield and another [2002] QB 1129, in which the Court of Appeal stated that in the context of introductory tenancies, there was simply no room to conclude that there might be any incompatibility with the Convention. He therefore struck out the applicants’ defence. Permission to appeal was refused.

The ECtHR notes the intervening history of Pinnock and Powell, and poses the following questions:

1. Was the interference with the applicants’ respect for their home, within the meaning of Article 8 § 1 of the Convention, necessary in terms of Article 8 § 2?

2. Was the review panel an impartial and independent tribunal as required by Article 6 § 1 of the Convention?

Comment

While Birch must surely have a predictable outcome, following the decision in Kay v UK (our report), Wilkes introduces something else. The article 6 question will give the ECtHR the chance to give its view on ‘review panels’ in determining Introductory tenancies (and presumably by extension Demoted tenancies). It may well turn out that the Pinnock approach would satisfy the article 6 issue for the future, even if the review panel is not art 6 compliant, but nonetheless an interesting prospect (although not perhaps the most prepossessing facts on which to be running such a case). Hat tip to the Garden Court Bulletin for letting us know about these.

*One for those of a certain vintage.

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 Assured Shorthold tenancy, Housing law - All, Introductory and Demoted tenancies, Possession and tagged , , .

6 Comments

  1. Regarding the Wilkes case, my understanding from Johns and McLellan v Bracknell Forest DC (2000) was that internal review panels are generally not viewed as being Art 6 compliant due to them not being independant or impartial but that the avenue of judicial review available (now including against some housing associations) would make any such processes Art 6 compliant?

    • Well, the combination of review panel and JR was held to be art 6 compliant. It would be stretching it to say that the panels were found not to be compliant but redeemed by the availability of JR. See paras 99-103.

    • I havent got a link to the judgement but I was going on the wording from Nic Madge’s article ‘Bringing rights home’ in the LSG 9/4/01.

      The wording seems to be saying that the judge found that when the introductory tenant invoked the review procedure Art 6 was engaged and that “Furthermore, the local authority agreed that a review panel is neither independant nor impartial”. “However there was no violation of Art 6 as the remedy of JR provided a sufficient right of review to comply with Article 6(1)”

      This is an interesting point as I’ve often wondered if Art 6 would be complied with for tenancies where there is NO review process (statuory or non statutory) but JR was available.

    • The phrasing in the Judgment at 84 is:

      It is accepted that the review panel itself could not have the degree of independence to comply with Article 6. But it is also accepted that it is necessary to consider the decision making process as a whole in determining whether the requirements of Article 6 are met. Albert and Le Compte v Belguim (1983) 54 EHRR 533 at paragraph 29 puts it this way:-
      “The Convention calls for at least one of the two following systems: either the jurisdictional organs themselves comply with the requirements of A6(1), or they do not so comply but are subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of A6(1).”

      The question to CoA deals with is whether the combination of review panel and JR is compliant. Link to the case:
      http://www.bailii.org/ew/cases/EWCA/Civ/2001/1510.html

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