Article 8 and Possession

The ECtHR’s recent decision in Buckland v UK  [updated link to amended judgment 5 October 2012] demonstrates again how wonderfully delphic the subject of housing and Article 8 rights has become.

In one sense, the outcome was fairly predictable because the case was determined by the UK Courts before the Supreme Court in Manchester CC v Pinnock established the principles of proportionality in possession claims.

The facts are fairly straightforward: Ms B and her family entered into a licence agreement with the Gypsy Council on 29/3/04 to occupy a plot on a caravan site in Port Talbot, Wales. Following allegations of nuisance and anti-social behaviour, the Council issued possession proceedings. The Judge, bound by Kay v Lambeth,  found that the Council’s decision to seek possession was not unreasonable and he made a possession order. However, he found that the allegations were at the lower end of the scale and he postponed enforcement of the Order (under s.4 of the Caravan Sites Act 1968) until 24/11/06. Ms B appealed to the Court of Appeal, who decided on 12/12/07 that the Court’s power to postpone under s.4 imported the requisite judicial scrutiny to claims brought under the Act and that the Act was within the margin of appreciation permitted to States under Article 8 ECHR. The Appeal was dismissed and Ms B left the site in May 2008.

Ms B complained to the ECtHR that she had been unable effectively to challenge the making of the possession order and that her eviction was disproportionate. The Court found that the judicial review grounds applied by the Court were insufficient to ensure the necessary Article 8 protection and that the power to grant 12 month suspensions of the order under s.4 provided inadequate procedural guarantees. Accordingly, Ms B was deprived of her home without the opportunity of having the proportionality of her eviction determined by an independent tribunal. Ms B’s complaint under Article 8 was therefore upheld and 4000 EUR non-pecuniary damages were awarded.

Comment: this case is particularly interesting because of the Separate Opinion of Judge De Gaetano. He scrutinises the classic formula:  “Any person at risk of an interference of this magnitude should in principle be able to have the proportionality of the measure determined by an independent tribunal in light of the relevant principles under Article 8 of the Convention, notwithstanding that, under domestic law, his right to occupation has come to an end” and observes that the final part of the test might lead one (incorrectly) to conclude that the making of an Order terminating those rights disappears from the picture as far as Article 8 is concerned. This is not the basis on which the Court decided Buckland and it leads the Judge in turn to make these remarks:

In my view while it is perfectly reasonable to require that an eviction or repossession notice issued by the Government or by a local authority – both of which are normally under a public law obligation to provide accommodation for people within their jurisdiction – or possibly even by a private entity in receipt of public funds, should be capable of being challenged on the grounds of proportionality, when the landlord is a private individual the tenant’s right should in principle be limited to challenging whether the occupation – tenancy, lease, encroachment concession, et cetera – has in fact come to an end according to law. In this latter case the proportionality of the eviction or repossession in light of the relevant principles under Article 8 should not come into the equation.

The first point here is that the judge appears to take it for granted that Article 8 applies to claims brought by private landlords. However, once the possession order is made in favour of a private landlord, the applicant would appear to be prevented from raising Article 8 issues at the enforcement stage.

Secondly, the judge refers to private entities in receipt of public funds. This contains an echo of the point made by the CA in Weaver about housing associations (para.84). While it is likely to be somewhat of a stretch to fix private landlords in receipt of housing benefit with Article 8 obligations equivalent to those of public authorities in the context of the paragraph, the  door is certainly open, for instance, to challenge possession proceedings brought against homeless tenants who have taken up a private tenancy in discharge of the homelessness duty.

 

 

About SJM

SJM is partner and head of the housing and public law department at Miles and Partners LLP, based in London E1.
Posted in Possession, Uncategorized.

9 Comments

  1. “The first point here is that the judge appears to take it for granted that Article 8 applies to claims brought by private landlords. However, once the possession order is made in favour of a private landlord, the applicant would appear to be prevented from raising Article 8 issues at the enforcement stage.”

    Is he actually saying that? My reading was that all Art.8 requires, in private sector cases, is for the court to determine whether the “occupation has in fact come to aned according to law.”

    It is completely unreasoned, however, and I’m not sure how much help it really is to anyone tbh. It does indicate that Strasbourg are aware and gearing up for the next big Art.8 question, i.e. what it all means for the private sector.

    • If he does mean that Art 8 in private sector cases is limited to what happens at the possession hearing, I don’t see the logic for this. Why should an anti-social local authority tenant have a further opportunity to raise a proportionality argument at the enforcement stage when a private tenant allowed to remain in situ years after a possession order is made can not? Furthermore, it would run contrary to the Court’s jurisprudence on this issue in Bjedov v Croatia.

      The intriguing thing for me about this Opinion is that Article 8 in the private sector is presented as a fait accompli, whereas there was no real need for the Judge to comment on this issue, except perhaps to underline what he considers to be a flaw in the wording of the proportionality formula.

    • I really think he is saying that and I also don’t think it really matters if art.8 in the private sector is fait accompli if all it means is the court have to be satisfied that the correct legal procedure has been followed; you get that already.

      How I read that was: Beware! You can’t necessarily read McCann over into the private sector.

      He appears to be marking out which side of the fence he is on in relation to that question. However, as it is all unreasoned and without any authority, it isn’t going to carry much weight (albeit I reckon it will be something that every landlord lawyer will quote whenever an art.8 defence is run.

  2. I don’t think that is a surprise in relation to private landlords . The interesting question is going to be surely in cases where you seek to show that the landlord’s aim is illegitimate and whether domestic law should address cases like that to protect a person’s home.

  3. Jan Luba made a very interesting comment about this case at the HLPA meeting on 19/09/12. For him the significance of Judge de Gaetano’s opinion was that he was differing from his colleagues on this point; in other words, that we may take it that the majority were in favour of the Article 8 principle being stated in a way that applies equally to private landlords.

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