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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Kensington and Chelsea v O'Sullivan & Anor [2003] EWCA Civ 371 (25 March 2003) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2003/371.html Cite as: [2003] EWCA Civ 371 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON
COUNTY COURT
(His Honour Judge Green QC
Strand, London, WC2A 2LL | ||
B e f o r e :
LORD JUSTICE WALLER
and
LADY JUSTICE ARDEN
____________________
The Royal Borough of Kensington and Chelsea | Respondent /Claimant | |
v | ||
Patrick O'Sullivan (1) Julia O'Sullivan (2) | Respondent/1st Defendant Appellant/2nd Defendant |
____________________
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Mark Lowe QC and Mr Richard Nall-Cain (instructed by Richard Ricks) for the Respondent/Claimant. The Respondent/1st Defendant was not represented and did not appear.
____________________
AS APPROVED BY THE COURT
Crown Copyright ©
Lady Justice Arden :
2. Articles 8 and 14 of the Convention provide in material part as follows:-
Article 8
Right to respect for private and family life
1. Everyone has the right to respect for his home.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of or for the protection of the rights and freedoms of others.
Article 14
Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
"Termination of a Joint Tenancy
Where one joint tenant terminates their tenancy and the remaining tenant is eligible for rehousing (i.e. in priority need as determined by the homeless persons unit), they would not be expected to move into temporary accommodation and wait for a new offer of housing. Instead a new sole tenancy can be granted for the property if it is the right size, or a transfer made to a smaller property. This discretion will not be used where the remaining tenant was violent to the departing tenant."
Background
4. In 1970, the Greater London Council (the GLC) granted a tenancy of the property to the appellant's husband, whom I shall call H, pursuant to an application signed by H alone. The tenancy became a secure tenancy within the meaning of the Housing Act 1985. At the time the tenancy was granted, it was common practice to grant sole tenancies to the male spouse of a married couple intending to reside in the same premises. The appellant resided at the premises as licensee of H, though she left on two occasions, returning in 1982. In l981 or 1982, the appellant was either offered or granted a tenancy in Elephant and Castle, although she did not move into this accommodation. From the time of her return in 1982, the appellant and H led separate lives but were both resident at the property. The appellant knew that she was not a tenant of the property. In 1991, H told the respondent that he did not wish the appellant to be made a joint tenant.
The judgment of HHJ Green QC
"Now if the Council had told a woman after the passage of theHuman Rights Act
1998 that they refused to grant a joint tenancy to her because she was a woman, I would find the Article clearly engaged. That is not the case. The highest Mr Short can put it is that back in 1970, it was common practice to grant tenancies to husbands alone. It is not suggested that the wife asked to be a joint tenant and the Council refused. On all the evidence it seems likely that her husband would have refused. Years later, he certainly said that he did not want her to be a joint tenant. Moreover, social conditions have changed since 1970. If I am wrong about that, I nevertheless conclude that there is no factual basis on the evidence for finding that Article 14 is engaged" (judgment, paragraph 10).
"On what it knew, it was entirely reasonable to accept the surrender and to grant the husband a new tenancy followed by these proceedings against the wife for possession. It knew nothing of the wife's presence until they went to board the place up." (judgment, paragraph 16).
Submissions
Article 14 taken together with Article 8(1)
(i) strong reasons are required to justify different treatment on the grounds of sex and marital status;
(ii) the fact that social attitudes were different in 1970 is of little weight;
(iii) the court has to have regard to the effect of a difference in treatment where the inequality in treatment embodied in a former practice materialises at a later date, and
(iv) the court has to take account of the fact that when the discriminatory practice was discontinued no measures were taken to remove the discriminatory effect of the former practice.
Article 8(2)
37. The judge erred in taking the view that the interest to be weighed against the appellants included the public interest in a settled and predictable scheme of landlord and tenant housing law. As Peter Gibson LJ pointed out in the Quazi v Harrow LBC, the court must now give effect to the rights protected by the Human Rights Act
1998. As regards the ongoing status of the appellant, the law is flexible enough to provide for new situations, such as with the concept of tolerated trespassers following the breach of a suspended possession order: see Burrows v Brent LBC [1996] 1 WLR 1448.
39. There is a valid objective in freeing up a five bedroomed house, but the appellant's right to a home could have been dealt with in a less invasive way, that is in a way which involved treating her no differently from a former joint tenant. Accordingly, it was not necessary or proportionate to evict the appellant. The judge failed to consider the other alternatives including the undertaking suggested.
Conclusions
"It appears to me that it will usually be convenient for a court, when invited to consider an art 14 issue, to approach its task in a structured way. For this purpose I adopt the structure suggested by Stephen Grosz, Jack Beatson QC and the late Peter Duffy QC in their book Human Rights: The 1998 Act and the European Convention (2000). If a court follows this model it should ask itself the four questions I set out below. If the answer to any of the four questions is No, then the claim is likely to fail, and it is in general unnecessary to proceed to the next question. These questions are: (i) Do the facts fall within the ambit of one or more of the substantive convention provisions (for the relevant convention rights, see s 1(1) of the 1998 Act)? (ii) If so, was there different treatment as respects that right between the complainant on the one hand and other persons put forward for comparison ('the chosen comparators') on the other? (iii) Were the chosen comparators in an analogous situation to the complainant's situation? (iv) If so, did the difference in treatment have an objective and reasonable justification: in other words, did it pursue a legitimate aim and did the differential treatment bear a reasonable relationship of proportionality to the aim sought to be achieved? The third test addresses the question whether the chosen comparators were in a sufficiently analogous situation to the complainant's situation for the different treatment to be relevant to the question whether the complainant's enjoyment of his convention right has been free from art 14 discrimination." (judgment, paragraph 20)
50. The European Court of Human Rights has frequently stated that:
"the advancement of the equality of the sexes is today a major goal in the member states of the Council of Europe and very weighty reasons would have to be put forward before a difference of treatment could be regarded as compatible with the Convention." (see, for example, Abdulaziz, Cabales & Balkandali v the United Kingdom, (1985) 7 EHRR 471 at paragraph 78).
"Mr Luba was at pains to insist that his case was put at what he called the 'micro' level: that is, he claimed only that his clients' individual cases be examined against the article 8 standards. He disclaimed any argument on the 'macro' level: that is, a challenge in principle directed to the compatibility of the homelessness legislation with [theHuman Rights Act
1998]. (The 'micro/macro' vocabulary was used in McLellan). But this very disavowal, in my judgment, betrays the weakness in Mr Luba's argument's roots. If this court were to hold that a tenant in the circumstances of either of these appellants is by force of article 8(2) entitled to have the County Court judge (or the judicial review court, it matters not) decide on the particular facts whether her eviction is disproportionate to the Council's aim (in essence) of managing its housing stock properly, we would in effect thereby convert the non-secure tenancies enjoyed by homeless persons into a form of secure tenancy. We should be imposing a condition, not unlike the requirement of reasonableness presently applicable in relation to secure tenancies under the 1985 Act, which takes the judgment where the possession of the premises should be obtained from the landlord council and gives it to the court. But such a state of affairs would not be consistent with the scheme of Part VII of the Housing Act 1996 for the assistance of homeless persons " (judgment, paragraph 37).
69. Laws LJ went on to hold as follows:
"I can see that if a tenant sought a judicial review upon being served with a notice to quit, the Administrative Court might now look at the case more closely than upon the conventional Wednesbury approach, not least given the recent decision of their Lordships' House in Daly [2001] 2 WLR 1389, and especially the observations of Lord Cooke of Thorndon. I can see also that at the stage of the trial of the possession proceedings, there might be the rare case where something wholly exceptional has happened since service of the notice to quit, which fundamentally alters the rights and wrongs of the proposed eviction; and the county court judge might be obliged to address it in deciding whether or not to make an order for possession. What I am clear the court cannot do is to take a position which disrupts the day to day operation of the scheme provided by Parliament in Part VII of the Housing Act 1996; and in my judgment not at least given the particular matters relied on by Mr Underwood, which I have set out at paragraph 23, that entails the conclusion that the balance of interests arising under article 8(2) has in all its essentials been struck by the legislature.
The other qualification is as to the venue in which, when the possession claim comes for trial, any article 8(2) points might be taken. On my view of the substance of the case, such occasions will (or should) be very rare. But when they arise, Mr Underwood submitted that the county court judge should not make any enquiry himself as to the necessity or proportionality of the making of an order for possession, but should adjourn the possession proceedings for application to be made by the tenant for relief by way of judicial review in the Administrative Court. He submitted that no point under article 8(2) could afford a defence to a properly constituted possession claim.
In my judgment, this argument simply ignores the effect of the HRA. The effect of sections 6 and 8 is that a housing authority cannot lawfully obtain possession of premises, and the court should not order it, if that would be incompatible with a Convention right. I should make it clear that in my view these provisions qualify the causes of action which the common law recognises; they are not sealed in a separate compartment, marked 'Judicial Review' or anything else. In the extremely limited circumstances in which an article 8(2) point may arise at the stage of trial of the possession proceedings the trial judge must deal with it. But no such point arises in these cases."
"[58]The county court's jurisdiction to make an order for possession is found in s 21(1) of the County Courts Act 1984: 'A county court shall have power to hear and determine any action for the recovery of land ' The authorities regarding this power (and its predecessor sections) established that it was the court's duty to order possession, where a landlord's legal right to possession had been established. The court could, even in the absence of any express power, postpone the operation of an order for possession (see Sheffield Corp v Luxford, Sheffield Corp v Morrell [1929] 2 KB 180, [1929] All ER Rep 581, Jones v Savery [1951] 1 All ER 820 and McPhail v persons, names unknown, Bristol Corp v Ross [1973] 3 All ER 393, [1973] Ch 447). However, s 89 of the Housing Act 1980 now provides in a case such as the present:
' the giving up of possession shall not be postponed (whether by the order or any variation, suspension or stay of execution) to a date later than fourteen days after the making of the order, unless it appears to the court that exceptional hardship would be caused by requiring possession to be given up by that date; and shall not in any event be postponed to a date later than six weeks after the making of the order.'
[59] Mr Luba on behalf of Mr Michalak submits that this position has now been radically affected by the 1998 Act and the introduction into domestic law of the convention. The starting point to the submission is that the flat of which Mr Lul was tenant was (and is) Mr Michalak's home, so that art 8(1) of the convention is potentially engaged, irrespective of Mr Michalak's status or entitlement in law to remain there. That is, on authority, correct: see this court's decisions in Harrow London BC v Qazi [2001] EWCA Civ 1834, [2002] HLR 276 and Sheffield City Council v Smart, Central Sunderland Housing Co Ltd v Wilson [2002] EWCA Civ 4, [2002] LGR 467. 'Home' in Laws LJ's words in the latter case, is an autonomous concept and does not depend on any legal status as owner.
[60] The next step in Mr Luba's argument is that the county court, on the claim for possession, was a 'public authority' under s 6(3) of the 1998 Act, and subject to s 6(1), which provides: 'It is unlawful for a public authority to act in a way which is incompatible with a Convention right.'
[61] Accordingly, Mr Luba submits, it was unlawful for the county court to act in a way which was incompatible with the respect due to Mr Michalak's home under art 8. In particular, it was unlawful to interfere with Mr Michalak's right to respect for his home except under conditions specified in art 8(2), and the judge should not have ordered possession unless satisfied that such conditions were met. As to the first condition, that the interference should be 'in accordance with the law', Mr Luba accepted that this was satisfied, by virtue of the fact that Mr Michalak was and remains a trespasser residing in the council's flat. It follows, by the same token, that the possession order was made 'for the protection of the rights' of the council in its flat.
[62] But the key issue, in Mr Luba's submission, was, or ought to have been, whether it was 'necessary in a democratic society' to interfere with Mr Michalak's continued residence in his home, for the protection of such rights; and that in turn required considering whether it was proportionate to make an order for possession."
"The reasoning and decision of this court in the Sheffield City Council case appear to me to be so closely applicable as to be incapable of satisfactory distinction in the present case. The scheme of ss 87 and 113 of the 1985 Act deliberately excludes a person in Mr Michalak's position from having security. The natural consequence, reinforced by the common law and statutory background relating to the grant and suspension of possession orders, is to entitle the local authority to recover possession of the flat. That scheme would be undermined if, following every death of a tenant, other residents of his flat could insist on arguing, as a defence in the possession proceedings, the general or particular merits of possession being retaken, when compared with the hardship to a particular remaining resident, whose home was involved. If and so far as any particular local authority was thought to be pursuing, either generally or in any individual case, a policy that was unfair, the possibility exists, subject to any appropriate time limits, of a challenge by way of judicial review, probably on the expanded basis mentioned in Ex p Daly. Where such a challenge is mounted, the court seized of the possession claim can adjourn pending resolution of the judicial review proceedings. The due respect for home required by art 8 is thus catered for by the availability of judicial reviewor, as Laws LJ pointed out in the Sheffield City Council case, in the rare case where that is not so, by a residual readiness on the part of the court itself to consider the position under art 8."
Lord Justice Waller:
Lord Justice Aldous: