A right without rights?

Just a quick note on an interesting point that came up for decision in

Plant, R (on the application of) v Lambeth London Borough Council [2016] EWHC 3324 (Admin)

This was a judicial review of Lambeth’s decision (after a ‘reconsultation’ after Lambeth lost a first judicial review) to proceed with the demolition and redevelopment of the Cressingham Gardens estate. I don’t propose to go into the details of most of the grounds, concerned with the deficiencies of Lambeth’s further consultation and the figures and accounts put forward (or not put forward). Suffice to say that Mr Plant lost on all grounds. Though there is an interesting decision on the legal test of the consultation – procedural unfairness must be such that “there has been a procedural unfairness which materially prejudiced the applicant” (via Hopkins Developments Limited v Secretary of State for Communities and Local Government [2014] PTSR 1145 ), rather than simply a technical flaw.

But the part that interested me particularly was a decision on the ground of review that put forward an interference with Mr Plant’s Article 1 Protocol 1 rights under the ECHR.

Mr Plant is a secure tenant of Lambeth, with the right to buy. Lambeth’s proposals for the redevelopment were that new social rent properties, which would be offered to current secure tenants, would be through a special purpose vehicle and, while at social rent levels, would not/could not be secure tenancies, but would be assured tenancies. Lambeth had been (and remain) completely silent on whether a contractual right to buy would be included in these tenancies.

Mr P alleged that there was an A1 P1 breach

“by interfering with the ability of secure tenants to rely upon a statutory right to buy; and/or
(b) the members of the Cabinet were misdirected in law as to the interference with that right to buy; and/or
(c) the consultation with residents was unfair and unlawful by LLBC having failed to provide adequate or proper information to consultees on the effect of option 5 on the right to buy.”

So, the initial (determinative) question was whether the right to buy was a ‘possession’ for A1 P1 purposes.

It was common ground that Mr P’s secure tenancy could be ended via ground 10 of schedule 2 Housing Act 1985 if suitable alternative accommodation as defined at s.1 Part IV of Schedule 2:

For the purposes of section 84(2)(b) and (c) (case in which court is not to make an order for possession unless satisfied that suitable accommodation will be available) accommodation is suitable if it consists of premises—

(a)which are to be let as a separate dwelling under a secure tenancy, or

(b)which are to be let as a separate dwelling under a protected tenancy, not being a tenancy under which the landlord might recover possession under one of the Cases in Part II of Schedule 15 to the Rent Act 1977 (cases where court must order possession), or

(c)which are to be let as a separate dwelling under an assured tenancy which is neither an assured shorthold tenancy, within the meaning of Part I of the Housing Act 1988, nor a tenancy under which the landlord might recover possession under any of Grounds 1 to 5 in Schedule 2 to that Act

and, in the opinion of the court, the accommodation is reasonably suitable to the needs of the tenant and his family. 

Lambeth argued that therefore a secure tenancy was “subject to statutory termination on a number of grounds (and not merely redevelopment) which, by definition, will cause the secure tenant to lose the potentiality of choosing to rely upon a right to buy his home at some point in the future. Indeed, if that should happen, the suitable accommodation which must be available to him may, or may not, carry with it a statutory right to buy.”

The right to buy was therefore subject to statutory grounds of possession and, even where there as no fault on the tenant’s part, could be ended and not replaced.

The court was persuaded

In Wilson v First County Trust Ltd (No. 2) [2004] 1 AC 816, Lord Hope stated at paragraph 106:-

“… Article I of the First Protocol has a similar character [to Article 6(1)]. It does not confer a right of property as such nor does it guarantee the content of any rights in property. What it does instead is to guarantee the peaceful enjoyment of the possessions that a person already owns, of which a person cannot be deprived except in the public interest and subject to the conditions provided for by law: Marckx v Belgium (1979) 2 EHRR 330, 350 para 50. Here too it is a matter for domestic law to define the nature and extent of any rights which a party acquires from time to time as a result of the transactions which he or she enters into. One must, of course, distinguish carefully between cases where the effect of the relevant law is to deprive a person of something that he already owns and those where its effect is to subject his right from the outset to the reservation or qualification which is now being enforced against him. The making of a compulsory order or of an order for the division of property on divorce are examples of the former category. In those cases it is the making of the order, not the existence of the law under which the order is made, that interrupts the peaceful enjoyment by the owner of his property. The fact that the relevant law was already in force when the right of property was acquired is immaterial, if it did not have the effect of qualifying the right from the moment when it was acquired.”

The finding was that

The order for possession made under ground 10 is not analogous to either a compulsory purchase order or an order for division of property in divorce proceedings. There the property rights in question already exist. Here the secure tenants have not yet exercised the statutory provisions which enable them to own their properties. These statutory provisions, which insist upon the continuing subsistence of the secure tenancy if they are to be relied upon, subjected the tenant’s rights from the outset of the secure tenancy to restrictions or qualifications which might subsequently be enforced against him. Accordingly, A1P1 is not engaged. For these reasons the present case is indistinguishable from authorities such as Kay v Lambeth LBC [2005] QB 352 at paragraphs 107-8 and Austin v Southwark LBC [2010] HLR 1

So, the right to buy did not engage A1P1. If it had, Lambeth’s silence on giving any contractual right to buy on the ‘new’ assured tenancies would have amounted to a breach.

Comment

I am not wholly convinced by this argument. After all, at para 39 of Wilson v First County Trust we find

‘Possessions’ in article 1 is apt to embrace contractual rights as much as personal rights. Contractual rights may be more valuable and enduring than proprietary rights.

And then, on the question of statutory overriding of contractual rights, at 43

A law regulating the effect of a transaction between the parties in the public interest does not always escape review under article 1 of the First Protocol. Such a law may infringe article 1 if it creates an ‘imbalance’ between the parties which would result in one party being arbitrarily or unjustly deprived of his possessions for the benefit of the other.

Add to that a question as to the relative equivalence of an enforced tenant decant under s.84 and ground 10 and a CPO against a leaseholder and I am not sure that the A1P1 position is quite to be disposed of in the way it was in this case.

Comments welcome….

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 Housing law - All, right-to-buy, secure-tenancy.

5 Comments

  1. But when you refer to Wilson, isn’t the “contractual right” just the tenancy? My argument would be that the right to buy is a statutory provision which can (and has) changed over time without the landlord or tenant having any say – so it’s not a contractual right.

    So an enforced decant is an interference in the contractual right (the secure tenancy), but it is replaced by a broadly equivalent contractual right (as per para 1, Pt 4, Sch 2) so all is good.

    I have to admit (to myself as much as anybody else) that when it comes to right to buy, my instinct is to undermine.

  2. But statutory overriding of a statutory right is not the same as a statutory overriding of a contractual right. The former is taking away a right in the same way it was given – like when the LHA, or bedroom tax or benefit cap were introduced. The latter is the state interfering in a contract between parties. It seems to me that in Wilson, the point in para 43 is that such an interference could be an A1 P1 breach if it created an unfair imbalance in a contractual relationship; i.e. the state cannot jump in and upset the balance of a contract between parties with impunity.

    I would suggest that Wilson could be used to argue that changing the law so that the terms of a tenancy changed could be a breach of A1 P1, but I don’t think RTB is a term of a secure tenancy – it’s a statutory bolt-on. Possession on ground 10 is part of the same statutory scheme (taken as a whole) that it is bolted on with – so it’s not an interference; it’s just part of the scheme.

    Getting back to the more conceptual question of whether RTB is a possession… I have difficulty with this and I think that possibly RTB is a confusing misnomer – isn’t it a potential option rather than a right?

    • But then the counter argument is that if a statutory right can be a possession, it can only be overridden by statute – and the clear and express words of statute at that, in a manner proportionate with breach of A1P1. So the limited overriding contained in ground 10 would not in itself be decisive of whether RTB was a possession.

      Options can be possessions… Eg a contractual share option.

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