The Article 8 Toys Go Back in the Box

Thurrock Borough Council v West [2012] EWCA Civ 1435

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.

Facts
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.

First Instance
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.”

T appealed.

Appeal
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:

  1. 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;
  2. The test to be applied is whether possession is a proportionate means of achieving a legitimate aim;
  3. The threshold for establishing that a local authority is acting disproportionately is high and circumstances will have to be truly exceptional;
  4. 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;
  5. 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;
  6. 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;
  7. 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;
  8. 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.

Appeal allowed.

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.

Conclusion
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.

About D

D is a solicitor specialising in landlord and tenant matters with a London firm.
Posted in Possession, Succession and tagged .

15 Comments

  1. Pingback: The Article 8 Toys Go Back in the Box – NearlyLegal | Current Awareness

  2. I do not think your conclusion follows from this case at all.

    This was a weak case on the merits – there was nothing about it on the facts that suggested eviction was disproportionate. The family were down the housing list , had no grounds for priority and were under-occupying.

    I think Etherton LJ has gone rather overboard in relation to Michalak etc.It is all too close to a resurrection of the property rights plus line drawn by Parliament on succession meets Art 8 – rejected by the ECtHR and in Pinnock .

    If in an appropriate case the eviction of a non-qualified successor is disproportionate that does not mean that it is equivalent to usurping the allocation function of the authority. It may be that circumstances will change by which it will become proportionate , equally it may be that the circumstances established by the occupier at trial will persuade the authority that it ought to allocate the property to them . The case does no more than reiterate that in non-qualified successor cases that they should only be defended where there are grounds for alleging that it is disproportionate to the legitimate aim . Here there were none.

    • JS – the difficulty is that, while I agree that this was a weak case which it is surprising got past first instance, this Court of Appeal decision will be binding for the County Courts. And as it is a weak case, it is not a good candidate for the Supreme Court. So, in practice, whether or not this decision has its faults, we are stuck with it as a ‘guidance’ case at least until a better one makes it to the Supreme Court.

  3. This is a recurring problem. A middling case stumbles into the CoA and the CoA not only give the case a good battering but take the opportunity of mining the road. Back to the Supreme Court with ‘a better one’ then?

  4. I cannot see the Sumpreme Court wanting to go near a public sector Art.8 defence anytime soon (if not ever).

    I also agreed with David. This and Lloyd will mean that the only Art.8 defences that have any real prospect will be those being run by tenants where they are faced with a mandatory ground of possession.

    Those who were never tenants just aren’t going to get anywhere, because a court can’t make an allocation and by dismissing a claim for possession that is what they would be doing.

    If you have execptional circumstances you may get some time, but no more than that.

  5. The Court of Appeal tend to forget that the HRA 1998 was also the ‘will of parliament’ and is not some strange free floating object. I stil don’t see the concept of ‘exceptional’ anywhere in the terms of article 8 (I obviosuly know where it has originated from – Lord Binghan and onwards). The actual concept , once when gets beyond ‘interference’, ‘lawful means’ and ‘legitimate aims’, is the concept of ‘proportionality’ not ‘proportionality and exceptionality’. ‘Exceptionality’ is a product of the paranoia of the higher domestic courts that all these thousands of insecure tenants (and others – heaven forbid) will suddenly become secure tenants.
    Article 8 encompasses and in many ways is most relevant for those “who were never tenants.” I haven’t noticed any rider restricting it to “those faced with a mandatory ground for possession.”

    • Exceptionality has arisen because the lower courts don’t understand Pinnock or Powell. Neuberger has never said it was the test; in Scott he said it should be a cross check.

      The reason it must be exceptional is because allowing a proportionality defence, in circumstances where a person never had a right to occupy land, is in effect an allocation of a tenancy. Allocaiton is something for Parliament; something Strasbourg has always agreed with.

      Parliament has said that task is for local authorities and you can’t have courts usurping the role of local authorities. They are completely ill equipped (as this case shows) to make decisions about how social housing should be administered and are complety unaccountable.

  6. It may be that you are using the term ‘tenant’ in a looser sense (?). Mr Connors, for example, had an insecure licence wwich had been terminated by the time he was evicted. If he had been able to present an article 8 defence and a possession order had not been granted then Leeds CC would have not been forced to grant him a licence again but would have been faced with a series of choices: grant him a licence; leave him without a licence and see how things go; get together the evidence (remember there was no evidence presented in the case) and take him back to court. So allowing his defence would not necessarily or inevitably grant him a licence/tenancy as you state.
    An even better example is the case of the squatters in Yordanova. They still remained squatters even after they were successful in their defence.
    Don’t forget that the refusal of possession orders where the local authority are acting unlawfully ,even where the defendants are trespassers, has a long history going back far beyond the HRA 1998 – see West Glamorgan v Rafferty [1987] 1 All ER 1005.

    • Re your first point, yes I was. There is a distinction, in my view, between occupiers who once had a right to remain (be it as a tenant/contractual licensee) and those who never had a right.

      Re Yordanova, we’ll have to agree to disagree on that one (we’ve discussed this before). On my reading, they won their case because Article 8 hadn’t been considered by the national courts; not because their eviction would have been disproportionate.

  7. Definitely my final point on this exchange.
    A. In some cases there is no distinction e.g. where some 25% of the Gypsy and Traveller population who live in caravans do not have authorised stopping places, they would say because of successive central and local goverment failures. Thus the ECtHR has long recognised that, due to the vulnerable position of Gypsies and Travellers as a minority, there is a positive obligation imposed on member states to “facilitate the Gypsy way of life” (Chapman v UK, para 96). In those circumstances unless there is some possibility for protection for those who are, often through no fault of their own, ‘trespassers’ then central and local governments will be allowed to ‘get away with it.’
    And, moving with trepidation outside my own neck of the woods, I don’t see why this might not apply in other individual circumstances. What if Mr West had lived in the property for 30 years and had ,say, 5 children?
    B. Yes, we’ll have to agree to disagree – the eviction was disproportionate with bells on.

  8. On the last point, had Mr West had 5 children it may well have been that Thurrock would have been grateful not to have to try and rehouse them elsewhere or deal with a homeless presentation.

    In these cases underoccupation is always an important factor as there is nearly always consideration for other applicants on the housing register who really need the space.

  9. I am afraid I could not disagree more with S . The suggestion that Art 8 is now confined to cases of tenants facing mandatory possession proceedings is completely contrary to the whole line of ECtHR authority following Connors and to Pinnock . I am sure that if that was suggested to Etherton LJ that it was the import of his judgment he would deny it .

    The allocation point, is a red herring , all a court is considering is whether at the time the matter comes before it the eviction is proportionate to a legitimate aim . The rather short-sighted failure of the SC to grapple with S89 properly in Powell may mean that the result will have to be possession or dismissal but if the facts change I cannot see any cause of action or issue estoppel questions arising and accordingly nor does the dismissal of a claim against a non-qualified successor mean a permanent allocation .

    It may be , for example in a case where a non-qualified successor with mental helath problems could show a very serious risk to his or her health by eviction – that the effect of declaring eviction to be disporoportionate would be likely to lead to an allocation of tenancy and it undoubtedly was the import of the bad argument run by the occupier in this case but ” it ain’t necessarily so “

    • NL – on your point the response is surely clear . These questions are fact-specific as the CA never stops pointing out .Cases where occupiers are not qualified to succeed have always had a strong legitimate aim for the authority to rely on . The case illustrates simply the importance of the concept of loss of home rather than need for accommodation.

  10. I think that there is an aspect in which this debate has moved away from the post I wrote. I deliberately stayed away from a discussion of whether or not the Court of Appeal decision was right. For the record I think their reduction of the law to 8 principles was always going to be an unwise move.
    My main point, which I stick by, is that in the County Courts this case is going to be quoted by every local authority and most District Judges and will inevitably become the standard against which most possession claims are measured. I cannot see that changing until someone can get a different case past the Court of Appeal.

  11. Last week I settled a possession claim (LB Hounslow v Stevens) brought by a local authority against a “second” successor, who had moved into her mother-in-law’s home to care for her in what turned out to be a terminal illness. The main defence was Article 8 and Thurrock v West was the battleground. The LA settled on the DJ giving strong indications that they should “consider their position”. They granted the daughter in law a new secure tenancy.
    The facts were very strong. The daughter-in-law had given up an assured tenancy of a larger property, which had been adapted for her seriously disabled daughter in order to move in and provide care for the mother-in-law. Her family were if anything underaccomodated at the new property even after the death of the mother-in-law. She had been encouraged to move in by the LA’s elderly care social worker, who had assured her there would be “no problem” with the tenancy being regularised. She had also been threatened with prosecution for benefits fraud if she did not give up her own tenancy after moving in with her mother-in-law. No advice was given about a carer absence under the Housing Benefit Regs. The daughter-in-law’s application for a discretionary “moral” succession had been given no consideration at all.
    While the settlement was favourable, it is a shame that no findings were made nor a reasoned judgment given.

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