The Court of Appeal has handed down judgement in a case that will probably come to characterise the operation of Article 8 in the daily life of the County Courts.
W’s grandparents (or great grandparents, there was some doubt) were tenants of T. W had joined them in the property and he was later joined there by his son and his partner. After the death of the grandfather the tenancy then vested solely with the Grandmother. After her death in December 2010 W sought to succeed to the tenancy. This second succession was barred by s37, Housing Act 1985. Accordingly, a notice to quit was served and T began proceedings for possession.
W defended the proceedings entirely on the grounds of Article 8. The relevant parts of the defence read as follows:
“7. The First Defendant will maintain that under Article 8 of the European Convention on Human Rights he is entitled to the right of respect for his home and that there shall be no interference by a public authority with the exercise of this right except in accordance with the law and as is necessary in a democratic society in the interests of the economic well being of the country, ie, that any Court Order must be proportionate.
8. In all the circumstances of the case the First Defendant, having occupied and paid rent for his home for nearly four years since April 2008 and with his partner Samantha Downward [sic] and son Harley West for over since [sic] years since 28th October 2009, it is not proportionate that he and his family should be evicted from their home.”
This is worth quoting as it also formed the primary argument before the Court of Appeal. The case was allocated to the multi-track and at trial the DJ dismissed T’s claim. There was heavy reliance by the DJ on Pinnock. In particular the DJ set out his stall with the following words:
19. However, on balance and exercising the test for proportionality, it seems to me that to evict this small family and this young child from this property to re-house them in another property which is one bedroom smaller, against all the background of the connection would be disproportionate.
20. Lord Neuberger clearly highlighted that people who might suffer physical and mental difficulties might well fall into a special category. It seems to me that families with young children fall into a similar situation and although they are not expressly included in that paragraph, it seems to me that it is another factor which in this case is of particular weight here. For these reasons, I find that the Article 8 defence succeeds.”
The Court of Appeal set out a series of 8 principles to be applied to Article 8 defences drawing on the various authorities. I suspect this fairly clearly laid out tick-list will end up becoming the de facto standard in the County Courts. In summary the principles are:
- It is a defence to a local authority claim for possession that it would be disproportionate in all the circumstances and therefore a breach of the Article 8 right to respect for the home;
- The test to be applied is whether possession is a proportionate means of achieving a legitimate aim;
- The threshold for establishing that a local authority is acting disproportionately is high and circumstances will have to be truly exceptional;
- The threshold is high because there is a public policy interest in local authorities managing their own stock effectively. They will normally be better equipped to make management decisions than the Courts;
- Where the local authority has a clear legal right to possession and there is no strong evidence that the authority is not acting in accordance with its duties then these fact alone are a strong factor in support of the local authority position without the need for further explanation;
- Any Article 8 defence must be pleaded and set out in sufficient detail to show that is meets the threshold. It is not enough to simply cry “Article 8” without a detailed summation of the reasons why it should apply;
- The Court must consider any Article 8 defence on a summary basis at the earliest opportunity and consider whether it reaches the threshold. If it does not it must be struck out or dismissed;
- Where an Article 8 defence has been established it will rarely be sufficient to allow someone who has no legal right to remain in a property absent Article 8 to do so.
In this case there was no legal right to remain in the property and the threshold was considered not to have been met. The Court did not agree that W and his family fell into the special category outlined by Lord Neuberger in Pinnock and cited by the DJ. There was no suggestion that the Council would no, in fact, rehouse W elsewhere.
Notably, the Court of Appeal went further stating that the Article 8 defence should never have been allocated to the multi-track and should have been dismissed summarily.
This decision will be a bit of a cold water bath for many housing lawyers. The clear statement of principles and the strong conclusion that this case should have been summarily dismissed will probably be picked up in the County Courts rapidly. I suspect that this will reduce the number of Article 8 defences in the County Court quite drastically. The Court of Appeal has put Article 8 firmly back in its box and nailed down the lid.