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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Davies v Hertfordshire County Council [2018] EWCA Civ 379 (06 March 2018) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2018/379.html Cite as: [2018] 1 WLR 4609, [2018] HLR 21, [2018] WLR(D) 141, [2018] 2 P & CR 4, [2018] EWCA Civ 379, [2018] 2 P & CR DG1, [2018] WLR 4609, [2018] 4 All ER 831 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
Mrs Justice Elisabeth Laing
HQ16X01766
Strand, London, WC2A 2LL |
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B e f o r e :
LADY JUSTICE SHARP
and
LORD JUSTICE DAVID RICHARDS
____________________
BRYN COLIN DAVIES |
Appellant |
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- and - |
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HERTFORDSHIRE COUNTY COUNCIL |
Respondent |
____________________
Andrew Lane and Tara O'Leary (instructed by Hertfordshire County Council Legal Services) for the Respondent
Hearing date : 29 November 2017
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Crown Copyright ©
Lady Justice Sharp:
Introduction
Facts
"15. The service of the notice to quit was also unlawful in a public law sense because the claimant did not have regard to
(a) the rights of the defendant and his family under article 8 of the Convention;
(b) the defendant's disability and the claimant's duties under the Equality Act 2010,
(c) the best interests of the children and the need to safeguard and promote their welfare in accordance with section 33 of the Children Act 2004.
16. The defendant is disabled within the meaning of section 6 and Schedule 1 of the Equality Act 2010.
17. The claimant is in breach of sections 15, 19, 35 and 149 of the Equality Act 2010…
19. It is denied that the claimant is entitled to the relief claimed in paragraph 10, or any relief. The making of a possession order would be disproportionate and unreasonable, in breach of the Equality Act 2010, section 11 of the Children Act 2004, a breach of article 8 of the Convention, and give rise to a breach of article 14 when read with article 8. These breaches have been particularised above, but the following should also be taken into account.
PARTICULARS
(a) The property has been the family home since 1 January 2003 which is over 12 years.
(b) The family have no other accommodation.
(c) If evicted, the family risk street homelessness which would have an enormously detrimental impact on the physical and mental health of all the family members.
(d) The defendant has been a good tenant.
(e)The children are all in full time education.
(f) The defendant's sons were born and brought up at the property. It is the only home that they know.
(g) The defendant's wife is the sole carer of her father who lives in the next road.
(h) The property has been specially adapted for the defendant's needs.
(i) In June 2011 the defendant underwent surgery for two slipped discs. In April 2014 he had a double hernia operation. The defendant is a blue badge holder. In April 2015 he had a level access shower installed, which the parties paid for.
(j) The defendant is suicidal and is under the care of the Crisis Assessment and Treatment Team of the Hertfordshire University NHS Foundation Trust who are seeing him on a daily basis pending a psychiatric assessment. He is also suffering from depression and panic attacks for which he is taking mediation. He took an overdose. He is extremely vulnerable at the present time."
104. The Defendant's pleaded challenge is only to the service of the notice to quit in this case. For the reasons I have given, service of the notice to quit was not necessary to bring the agreement to an end. The agreement had ended automatically with the Defendant's dismissal. Nonetheless, I accept that at the point when the agreement ended, the Council could have let the Defendant stay in the Bungalow with his family, and that the Council made an active decision to serve the notice to quit. In doing that, I accept that the Council was exercising a function. The decision the Council made was whether to enforce the agreement in accordance with its terms or not.
105. I also accept that this was the exercise of a function to which section 149 of the 2010 Act and section 11 of the 2004 Act could apply in theory. However, neither of those duties confers a private law right on the Defendant. That means, on the authority of Mohamoud[1] and Lambourne, that even if the Defendant could have applied for judicial review of the decision to serve the notice to quit, on the grounds that the Claimant had not complied with those public law duties, any failure to comply with them would not provide a defence to the claim for possession. Contrast the attack on the decision to increase the rent due in Winder's case.
106. In case I am wrong about that point of principle, I should say something briefly about each duty. I would have held that section 11 did apply, and that the Claimant breached it in serving the notice to quit because, on the evidence, the Claimant gave no thought at all to the presence of the Defendant's children in the Bungalow or to the effect of the service of the notice to quit on their welfare."
Discussion
"(1) This section applies to each of the following-
(a) a local authority in England;
…
"(2) Each person and body to whom this section applies must make arrangements for ensuring that—
(a) their functions are discharged having regard to the need to safeguard and promote the welfare of children …"
"47. There were various threads to this argument pursued by Mr Underwood and Mr Rutledge supported by Mr Holbrook in his skeleton for Manchester. Reliance was placed on section 38 of the County Courts Act 1984, which precludes the County Court from granting mandamus, and certiorari. That however may only go to remedy. Mr Underwood argued more relevantly that on a proper analysis of the decision in Wandsworth London Borough Council v. Winder [1985] AC 461 ("Winder") a public law defence was only open to a litigant to defend a private law remedy. Thus he argued that Lord Hope's reference at [110] of Kay to Winder as the foundation for the gateway (b) defence demonstrated that in Kay the majority in the House of Lords in adopting [110] were describing no more than the traditional public law defence in the County Court where the defendant had a private right on which the public law aspect depended. Thus his argument was that in the non-secure tenancy cases since none had any private right, it followed that a public law defence was never available to them as a defence in the County Court. He accepted, of course, that they had the right that any interested party has to apply for judicial review to the Administrative Court but that was a different matter. This submission he suggested had the merit of putting all non-secure occupiers in the same position i.e. of having to persuade the County Court that they had an arguable case for Judicial Review so that the possession proceedings would be adjourned, and of those occupiers having the further hurdle of persuading the Administrative Court to grant permission to bring the application for Judicial Review.
48. But Mr Underwood had to accept that in Doherty the majority in the House of Lords had contemplated that even in a case where the occupier did not have a private right, he could run a public law defence in the County Court and that we were bound by that decision.
49. That concession was clearly right and we can leave this issue there…"
And later on at para 74:
"We are thus bound to hold that gateway (b) can apply to any decision of the local authority relevant to seeking possession which could be the subject of judicial review."
"The same conclusion [that the County Court had jurisdiction to deal with a defence which relies on an alleged breach of the defendant's article 8 Convention rights] can be justified on the rather wider basis that, where a tenant contends that the decision of a local authority landlord to issue, or indeed to continue, possession proceedings can in some way be impugned, the tenant should be entitled to raise that contention in the possession proceedings themselves, even if they are in the County Court. This seems to us to follow from the decision of the House of Lords in Wandsworth v Winder [1985] AC 461, as cited and approved in the present context in Kay v Lambeth [2006] 2 AC 465 para 110, and again in Doherty v Birmingham [2009] 1 AC 367, paras 56, 123 and 157 (see para 28 above). This approach also derives strong support from the observations of Lord Bingham in Kay v Lambeth [2006] 2 AC 465 para 30."
"…consistent with authorities such as Wandsworth London Borough Council v Winder [1985] AC 461 and Boddington v British Transport Police [1999] 2 AC 143 and respects the principle that if other means of redress are conveniently and effectively available to a party they ought ordinarily to be used before resort to judicial review: see, for example, R v Huntingdon District Council, Ex p Cowan [1984] 1 WLR 501, 507. Where a party seeks relief, on conventional judicial review grounds, which only the Administrative Court can grant, there will, of course, be no alternative to an application for judicial review, but that will very rarely, if ever, be the case where an occupier seeks to resist a possession order in reliance on article 8."
"31. …the "best interests" or wellbeing of the child may be relevant to the proportionality of interference with rights under article 8 of the Convention as explained in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4; [2011] 2 AC 166; a case concerning immigration and asylum, H (H)v Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor intervening) [2012] UKSC 25; [2013] 1 AC 338, a case concerning extradition and Collins v Secretary of State for Communities and Local Government and another [2013] EWCA Civ 1193; [2013] PTSR 1594 a case concerning planning.
32. The general approach in such cases derives from Article 3(1) of the United Nations Convention on the Rights of the Child 1989 which says: "In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, best interests of the child shall be a primary consideration." The wellbeing of a child is not necessarily determinative and may be outweighed by other factors, but it must be considered first, and is a primary consideration where the decision directly affects the child's upbringing: ZH (Tanzania) Baroness Hale of Richmond JSC at paras 25 and 33.
33. In Collins [Collins v Secretary of State for Communities and Local Government and another [2013] EWCA Civ 1193; [2013] PTSR 1594] Richards LJ did not think section 11 added materially to the article 8 analysis in any event (see para 14); and approved the observation of Hickinbottom J in Stevens v Secretary of State for Communities and Local Government [2013] EWHC 792 (Admin); [2013] JPL 1383 that it will not usually be necessary for the decision-maker to make their own inquiries as to evidence that might support the child's best interests: see para 16…
67. Further, as in Collins, it is difficult to see how the section 11(2) duty adds anything material to the article 8 analysis. If it does so, it seems to me, more as a matter of form, rather than substance."
LORD JUSTICE DAVID RICHARDS
LORD JUSTICE DAVIS
Note 1 Kensington and Chelsea Royal London Borough Council v Mohamoud, Wandsworth London Borough Council v Saleem [2015] EWCA Civ 780; [2015] HLR 38; [2016] PTSR 289 [Back] Note 2 "(1) a person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) [i.e. in a way which is incompatible with a Convention right] may …(b) rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act."
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