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Michalak v London Borough of Wandsworth  EWCA Civ 271 (6th March, 2002)
| || ||Neutral Citation Number:  EWCA Civ 271|
| || ||Case No: B2/2001/1450 CCRTF|
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WANDSWORTH COUNTY COURT
| || ||Royal Courts of Justice|
London, WC2A 2LL
| || ||6th March 2002|
B e f o r e :
LORD JUSTICE BROOKE
LORD JUSTICE MANCE
MR JUSTICE PARK
| || JAN MICHALAK||Appellant/|
| ||and –|
| ||LONDON BOROUGH OF WANDSWORTH||Respondent/Claimant|
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Jan Luba QC and Zia Nabi (instructed by HCL Hanne & Co) for the Appellant
Anthony Scrivener QC and Jonathan Easton (instructed by DMH) for the Respondent
John Howell QC & Jonathan Karas (instructed by the Treasury Solicitor) for the Secretary of State for Transport, Local Government and the Regions.
HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
Crown Copyright ©
Judgment of Brooke LJ
||The Housing Act defence
||The Human Rights Act defences
||ECHR Article 8
||ECHR Article 14
||Do the facts fall within the ambit of one or more of the substantive Convention provisions?
||Was there different treatment as respects that right between the complainant on the one hand and thechosen comparators on the other?
||Were the chosen comparators in an analogous situation to the complainant’s situation?
||If so, did the difference in treatment have an objective and reasonable justification?
||The possession order
||Judgment of Mance LJ
||Judgment of Park J
Lord Justice Brooke :
- This is an appeal by the defendant Jan Michalak against an order made by Judge Winstanley at the Wandsworth County Court on 15th June 2001 whereby he was directed to give up possession of 182 Sheepcote Lane, Battersea to the claimants, the London Borough of Wandsworth (“the council”), on or before 13th July 2001. The judge adjourned the council’s money claim for damages for use and occupation for trial before the district judge, and we are not concerned with that aspect of the claim.
2. The facts
- The premises in question are a two-bedroomed flat which was let by the council to Mr Jan Lul on 17th June 1985, and which remained Mr Lul’s home under a secure tenancy until his death on 14th November 1998. Mr Michalak came, at Mr Lul’s invitation, to occupy the second bedroom in the flat about six weeks after the tenancy started, and he has lived there ever since. He claims to be entitled to stay there, notwithstanding the council’s desire to obtain possession. The appeal raises issues under Section 87 and 113 of the Housing Act 1985 (“the 1985 Act”) and Articles 8 and 14 of the European Convention on Human Rights (“ECHR”).
- There is no challenge to the judge’s findings of primary fact. Both Mr Lul and the defendant were born in Poland, the former in 1914, the latter in 1953. Mr Lul had fought in the Second World War, and then worked in a factory in England until he retired in 1978 at the age of 64. He then made his home as a lodger with Mrs Coffey, who gave evidence at the trial, at an address in Allfarthing Lane, Wandsworth, until he moved to the flat in Sheepcote Lane. One of the reasons why Mrs Coffey had been anxious for Mr Lul to move from her house in 1985 was that she was then pregnant with her second child. When she required him to leave, the council rehoused him as a homeless person who was not intentionally homeless.
- The defendant came to England in 1981. His grandfather had a sister whose son had married Mr Lul’s sister. In English parlance, Mr Lul was the brother-in-law of the defendant’s first cousin once removed. However that may be, when the defendant came to England, he got in touch with Mr Lul as a fairly distant family connection who was willing to be kind to a previously unknown relation, and he was housed with Mr Lul under Mrs Coffey’s roof for about three months in 1981 before he went off to live with friends. He later rented premises in Fulham where he lived until Mr Lul invited him to use the other bedroom in his new flat in Sheepcote Lane. In the meantime he had visited Mr Lul from time to time. Mr Lul spoke English, whereas the defendant’s English was very poor. There was no other member of the defendant’s family living in England, and Mr Lul had only one other distant relative living here.
- The defendant moved to Sheepcote Lane on the basis that he would contribute £25 per week towards Mr Lul’s rent when he was working. In the event he only made these payments during an 11 month period in 1986-7 because for the rest of the time he was out of work. He did not draw state benefits of any kind, and the judge found that he must have subsisted on Mr Lul’s good grace towards him. He used to address Mr Lul by a Polish word which might be translated “uncle”, which the judge took to be an affectionate form of address by a younger member of a family to an older member of the family who was distantly related to him.
- The judge found that while he was living in Sheepcote Lane, the defendant cooked some meals for Mr Lul, and did some of his shopping, and he also gave him a helping hand with his washing, particularly towards the end of his life when he was incontinent from time to time. The judge said that the defendant was helping to a degree to care for Mr Lul, but he was not a full time carer. This was in no sense a loving or a caring relationship. The defendant merely had a relationship of respect for the older man, and he was willing to help somebody who had helped him and had shown him kindness when he first came to England.
- The judge found that the two men led their own lives. The defendant had his own social life, which the judge found to be illustrated by the fact that on the night Mr Lul died the defendant was out at the cinema with a lady friend, with whom he subsequently spent the night.
3. The Housing Act defence
- After Mr Lul died, the council served a notice to quit on his personal representatives, and when this notice expired, they sought possession of the premises from Mr Michalak on the basis that he had no legal right to remain there after Mr Lul’s secure tenancy expired.
- Any statutory provisions apart, the council was clearly correct. At common law Mr Michalak was a trespasser. He has sought to overcome the common law position, however, by relying on statutory defences, both under the 1985 Act and under the Human Rights Act. His primary defence in this context was that he was a member of Mr Lul’s family within the meaning of section 87 of the 1985 Act and that he had resided with Mr Lul at the premises for a period far longer than the 12 month period mentioned in section 87(b). He therefore maintained that he was qualified to succeed Mr Lul under a secure tenancy, as that section provides.
- The difficulty with this argument, as Mr Luba QC, who appeared for Mr Michalak recognised, is that both sections 87 and 113 fall within Part IV of the 1985 Act, and section 113(l) provides that:
“A person is a member of another’s family within the meaning of this Part if –
(a) he is the spouse of that person, or he and that person live together as husband and wife, or
(b) he is that person’s parent, grandparent, child, grandchild, brother, sister, uncle, aunt, nephew or niece.”
Section 113(2) makes provision ancillary to section 113(1)(b) for relationships by marriage (rather than blood) and by half-blood (rather than whole blood), and for stepchildren and illegitimate children, none of which are relevant in the present context.
- Mr Luba was unable to find any reported case since 1980 (when an equivalent provision was first introduced in section 50(3) of the Housing Act 1980) when it had even been argued that the list now contained in section 113(1) of the 1985 Act was not an exhaustive list. He showed us, indeed, that in Harrogate Borough Council v Simpson (1985) 17 HLR 205 Watkins LJ clearly treated section 50(3) as a definition section (see pp 207 and 208). This approach did not, however, form part of the basis on which this court decided that case, and Mr Luba ingeniously sought to argue, by reference to other provisions of the 1985 Act, that if the draftsman had meant the list to be exhaustive he should have used the word “means” (as in sections 113 or 116) and that the existence of the list should not be taken to exclude other members of the former tenant’s family residing with him on his death, such as Mr Michalak, if they can properly be so described. Mr Luba sought to get round the difficulty posed by section 117 of the Act, which is entitled “Index of defined expressions” and contains a signpost to section 114 for the expression “family (member of)”, by fastening on the opening words of that section:
“The following Table shows provisions defining or otherwise explaining expressions used in this Part …”
Mr Luba said that the words in section 113 did not define the expression “member of another’s family”: they merely explained it.
- This appears to me to be a distinction without a difference. In my judgment the editors of the Housing Law Reports were correct when in their introductory note to Harrogate Borough Council v Simpson (1985) 17 HLR 205 they wrote, in relation to section 50(3) of the Housing Act 1980:
“In defining the term [‘member of family’] statutorily, Parliament clearly sought to distance itself from the case law which had grown up around the term under the Rent Acts: see now Rent Act 1977 s2 and Sched 1, Part I. In that Act, the same term ‘member of family’ is used, but not defined, and reliance is placed on earlier judicial definitions.”
- There is a useful list of leading cases concerned with the Rent Act meaning of the phrase in Halsbury’s Statutes, 4th Edition, 1997 Reissue, Vol 23 at pp 963-4. Although the courts stressed that the decision in each case turned on a question of fact, a contrast can be seen between Jones v Whitehill  2 KB 204, where a niece by marriage was held to be entitled to a successor tenancy, and Langdon v Horton  1 KB 66 where that status was denied to a first cousin. Even under the Rent Act Mr Michalak would have been treated as being too distant a relative to qualify.
- It is clear to me that in abandoning the potentially open-ended phrase “member of the tenant’s family” by inserting the explanatory section 113 which shows what type of relative is embraced by that phrase, Parliament intended to achieve certainty, a quality which is very desirable in the arena of local authority housing with which these statutory provisions are concerned. Although, as Mr Luba argued, a rigid list may lead to unfairnesses at the edges, its introduction leads to clarity and the avoidance of costly and time-consuming litigation as to who is and who is not a member of the tenant’s family for this purpose. Section 113 makes the position clear.
- For these reasons, on the proper construction of Part IV of the 1985 Act (ignoring Human Rights Act implications) I am satisfied that Mr Michalak has no right to occupy the premises, and that the council was entitled to treat him as a trespasser and seek a court order for his eviction.
4. The Human Rights Act defences
- I turn now to Mr Luba’s arguments based on ECHR Articles 8 and 14, which form part of Schedule 1 to the Human Rights Act 1998. These articles read, so far as is material:
“8(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(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 … the economic well-being of the country, … or for the protection of the rights and freedoms of others.
14. 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.”
5. ECHR Article 8
- In my judgment Mr Michalak can only obtain assistance from Article 8(1) in so far as it accords him a right to respect for his home. In so far as the circumstances in which he shared Mr Lul’s home could be properly described as “family life”, that family life was at an end when Mr Lul died and he was on his own in the flat. On the other hand this court has recently held that a right to respect for a home may be asserted by someone who has no legal entitlement to live in the premises in question (see Qazi v London Borough of Harrow  EWCA Civ 1834 at  – , relying on Buckley v UK (1996) 23 EHRR 101).
- Mr Luba did not suggest that his client was entitled to a successor tenancy by virtue of Article 8(1), because it is settled Strasbourg jurisprudence that the right to respect for a home does not bring with it a positive right to require the state to provide a home (Chapman v UK (2001) 33 EHRR 18 at ). In this part of his argument he was concerned to argue that the fact that Mr Michalak had the right to respect for his home meant that Article 8 was engaged, and since this right came within the ambit of Article 8 we should interpret his legal rights in such a way that he would not suffer unlawful discrimination contrary to Article 14 by being evicted from the flat when persons in relevantly similar situations would not have been evicted. Mr Luba sought for his client the status of what has been called in another context “a tolerated trespasser”.
6. ECHR Article 14
- Mr Luba submitted that we were bound, by section 3 of the Human Rights Act 1998, to interpret the provisions of Part IV of the 1985 Act in such a way that Mr Michalak, as a member of Mr Lul’s family, was not treated less favourably than other persons in relevantly similar situations. In this context he identified two comparators, the first being members of a tenant’s family who are mentioned in the list contained in section 113 of that Act, and the other being someone of a similar degree of relationship to a tenant enjoying a Rent Act tenancy. He accepted that if he could not establish Mr Michalak’s status as a member of Mr Lul’s family for this purpose, these arguments would fail without any need for the court to consider questions of objective justification (but see para 26 below).
- It appears to me that it will usually be convenient for a court, when invited to consider an Article 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 Human Rights Act 1998, section 1(1))?
(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 Article 14 discrimination.
- The European Court of Human Rights (“ECtHR”) first started to develop its Article 14 jurisprudence in the Belgian Linguistics case (1968) 1 EHRR 252. The governing principles, however, were accepted by all the parties, and it is unnecessary to burden this judgment with further citation at this stage.
- It is important to stress that this is only a framework, which may be particularly useful for those who come newly to the consideration of Article 14 issues. There is a potential overlap between the considerations that are relevant when determining, at any rate, the last two, and possibly the last three questions. There may sometimes, therefore, be a need for caution about treating the four questions as a series of hurdles, to be surmounted in turn. In Nasser v United Bank of Kuwait  EWCA Civ 556 at ,  1 All ER 401 Mance LJ observed, in effect, that questions (iii) and (iv) above tend to merge into another.
(i) Do the facts fall within the ambit of one or more of the substantive Convention provisions?
- Mr John Howell QC, who appeared for the Secretary of State for the Department for Transport, Local Government and the Regions (“DTLR”), argued that Article 8 was not engaged, because that Article did not give Mr Michalak a right to a secure tenancy by succession (see para 18 above), but merely a right to respect for his home. In my judgment, this would be to take too narrow a view of the effect of Article 14. The trigger for the application of Article 14 is whether the facts in issue “fall within the ambit” of one or more of the other Convention provisions (Rasmussen v Denmark (1985) 7 EHRR 371 at ), and the finding of a violation under Article 14 is not dependent on first establishing a violation of some other Convention right. Indeed, in Abdulaziz v UK (1985) 7 EHRR 471 at  the ECtHR said:
“The victim of discrimination within the meaning of Article 14 includes, in general, cases where a person or group is treated, without proper justification, less favourably than another, even though the more favourable treatment is not called for by the Convention.”
- Mr Michalak’s complaint is that in violating his right to respect for his home by seeking or ordering his eviction in circumstances where a comparator in an analogous situation would not have been evicted, a public authority (whether the council or the court) was discriminating against him in a matter which falls within the ambit of Article 8. I am satisfied that his complaint passes the first of the four Article 8 tests.
(ii) If so, was there different treatment as respects that right between the complainant on the one hand the chosen comparators on the other?
- It appears to me that when Mr Michalak’s complaint is formulated in the terms set out in paragraph 24 above, it passes the second test. I did not understand there to be any argument to the contrary.
(iii) Were the chosen comparators in an analogous situation to the complainant’s situation?
- As I have indicated in paragraph 19 above, Mr Michalak’s case is that as a member of Mr Lul’s family who had occupied Mr Lul’s flat as his only home and had resided with him throughout the period of 12 months ending with Mr Lul’s death, he is being denied a secure tenancy by succession in circumstances in which either a relation as closely (or distantly) related to the tenant as he was, who satisfied similar criteria, would have been entitled to a successor tenancy under the Rent Act or (ii) a relation more closely related to Mr Lul who satisfied these criteria would have been entitled to a successor tenancy under the 1985 Act. The second of these points was raised for the first time in oral argument in this court, but in the absence of any suggestion to the contrary we were willing to consider this point, too. I have used the word “relation” in the place of the expression “member of the family” which Mr Luba preferred to adopt, for understandable reasons, because the court’s duty to ensure that it does not act incompatibly with the ECHR may require it to range more widely than was suggested by counsel in argument.
- The council and the Secretary of State responded by raising three main points:
i) Mr Michalak would not have been treated as a member of Mr Lul’s family entitled to a successor tenancy under the Rent Act, under which he would have been similarly disentitled to succeed;
ii) When considering a suggested comparator, the court will ask itself whether he/she has any personal characteristics in common with the complainant, and Mr Michalak’s first comparators fail that test;
iii) If (contrary to their submissions) Article 8 is engaged, it is accepted that the second of the suggested comparators is in a relevantly similar situation, but Mr Michalak’s case fails at the fourth and final stage.
- I will therefore consider first the argument that a person in Mr Michalak’s position would have been treated as a member of Mr Lul’s family entitled to a successor tenancy under the Rent Act. In this context Mr Luba did not challenge any of the judge’s findings of primary fact. Indeed, he said that these findings ought inexorably to have led the judge to the conclusion that his client was a member of Mr Lul’s family. He relied in this context on the following points:
(i) They were related. The judge recorded that a family tree showed Mr Michalak’s family relationship to Mr Lul.
(ii) Mr Lul maintained Mr Michalak except for one quite short period.
(iii) Mr Michalak helped to a degree to care for Mr Lul.
(iv) He did this because he was displaying kindness, in the judge’s words, to an elderly member, a distant member of his family.
(v) It was the family connection that brought them to live together.
(vi) Mr Michalak called Mr Lul “uncle” as a means, as the judge put it, of “affectionate address of a younger member of the family to a respected older member of his family in distant relationship”.
- The judge postponed his consideration of this issue to the very end of his judgment. He cited parts of the headnote and part of Lord Slynn’s speech in the Rent Act case of Fitzpatrick v Sterling Housing Association  1 AC 27, and went on to accept that there was plenty of authority to show that the concept of being a member of a tenant’s family was a moving concept. He continued, however, (at pp 16-18 of the judgment):
“Here, my findings of fact show that as far as the familial relationship is concerned, they are very distant relations. They had never known each other before they first met and shared accommodation, in the sense of each renting a room at Mrs Coffey’s house for three months. Initially it was proposed on the basis of a financial relationship, in that it was always the basis that Mr Michalak would pay £25 per week, though Mr Lul was prepared to support him, and did support him in times out of work. Some shopping was done; some meals were prepared; and later on, as he became more ill, some laundry was done.
I find there was no emotional bond to which you could apply the word ‘loving’ or really even caring; it was a relationship of respect, as I say, of the younger towards the older, helping out someone who had helped him. I find they led their own lives. Mr Lul was housebound; we have heard from Miss Coffey he spent his days in watching TV all the time. We know it was a two-bedroomed flat; they had their own rooms. We see from the insight, the snapshot we get of Mr Michalak’s life, that he had his own social life. He was not a 24-hour carer. They led their own lives. He was out with his girlfriend; he was out at the cinema. It was a relationship, in my judgment, more of anything of convenience. The family connection did no more than provide the initial introduction and the reason to help each other.
No doubt it was convenient to have someone younger and fitter around as far as Mr Lul was concerned. No doubt for Mr Michalak it was helpful to have someone who had lived in the country a considerable period of time and spoke English, and above anything else, bearing in mind the difficulties that Mr Michalak was facing in terms of getting work, his immigration status and accommodation, it was helpful to have a room and a place to lay his head for the night. The relationship was more practical than familial. In my judgment this was not a familial it was not a family relationship (sic), and if called upon to decide that issue, though it is not strictly speaking necessary in relation to the way I have decided the case so far, I find that Mr Michalak was not a member of the tenant’s family.”
- In my judgment the approach which the judge adopted to this question of fact was soundly based. He first considered the familial relationship between the two men and found that they were very distant relations. One has only to read the judgment of Sir Raymond Evershed MR in Langdon v Horton  1 KB 666 at p 670 to see that in the context of successor tenancies under the Rent Acts the courts were astute to confine the meaning of the word “family” to embrace close relations only. He said:
“… if the consanguinity test were treated as satisfied in this case [of first cousins], it would extend it to relations of every degree, and, indeed, would mean that we were substituting for the word ‘family’ in the paragraph the word ‘relations’.”
- The judge then showed himself willing to consider whether any of the matters which led the House of Lords in Fitzpatrick v Sterling Housing Association to hold that homosexual partners in a loving relationship were members of a family could enable him to make a comparable finding in the present case. Mr Luba did not seek to challenge any of the judge’s primary findings of fact in this context, and given those findings, it appears to me that the judge was fully entitled to draw the inference that the Fitzpatrick case provided no assistance at all to Mr Michalak.
- I reject the argument advanced by Mr John Howell QC, who appeared for the Secretary of State, that it is necessary to find some “personal characteristics” in common with the comparators relied upon.
- Mr Howell relied in this context on the judgment of the European Court of Human Rights in Kjeldsen v Denmark  1 EHRR 711 at  in support of this argument, for in that case the court:
“… first points out that Article 14 prohibits, within the ambit of the rights and freedoms guaranteed, discriminatory treatment having as its basis or reason a personal characteristic (‘status’) by which persons or groups of persons are distinguishable from each other.”
- In later cases, however, the Strasbourg authorities looked favourably on complaints of Article 14 discrimination brought by the owners of non-residential as opposed to residential buildings (Spadea and Scalebrino v Italy (1995) 21 EHRR 482), the owners of a pit bull terrier as opposed to the owners of other breeds of dog (Bullock v UK (1996) 21 EHRR CD 85) and small landowners as opposed to large landowners (Chassagnou v France (1999) BHRC 151). The narrow approach evidenced in Kjeldsen appears to have been superseded in these more recent decisions.
- It appears to me, however, that even if it was open to us to hold that a person as distantly related as Mr Michalak was to Mr Lul would now be treated as a member of Mr Lul’s family in a Rent Act context – and therefore entitled to a successor tenancy - there are too many differences between the regimes for protected/statutory tenancies under the Rent Act and secure tenancies under the Housing Act for us to be satisfied that the chosen comparator was in a relevantly similar situation.
- The differences include:
i) Different arrangements for the assignment of tenancies (Rent Act, s 98(1), Sch 1, para 13 and Sch 15, Part I, Case 6; 1985 Act, s 91(1), (3)).
ii) Different arrangements for the succession to tenancies (Rent Act, Sch 1, Part I; 1985 Act s 87, which does not allow a second succession: there are a number of other significant differences; compare, for instance, Rent Act, Sch 1, para 6 with 1985 Act, s 89(2)(b)).
iii) Rent levels (Rent Act Part V scheme for fair rents does not apply to secure tenants);
iv) The right to allow others to reside in the dwelling house as lodgers (1985 Act, s 93(1)(a): no similar express right in the Rent Act);
v) The addition, variation and deletion of certain terms of the tenancy other than by agreement (1985 Act s 103);
vi) The obligations on the landlord to consult his tenants on matters of housing management that may substantially affect them (1985 Act s 105);
vii) The means by which the tenancies may be brought to an end and the grounds for recovering possession (Rent Act s 98(1), Sch 15; 1985 Act s 84, Sch 2);
viii) The right to buy at a discount (1985 Act Part V): this right applies to certain secure tenancies but not to protected or statutory tenancies.
- So far as rent levels are concerned, we were shown statistics which gave an average weekly rent of £54.92 for the 212,000 local authority two-bedroomed properties in London in 1998-9 as compared with an equivalent average rent of £67 for equivalent registered regulated tenancies in the private sector. Even though the calculation of a fair rent excludes scarcity value, these statistics reveal a significant element of public subsidy in the case of secure tenancies.
- While not disputing any of the facts set out in the list contained in paragraph 36 above, Mr Luba nevertheless argued that we should not be distracted by points of detail from finding that Rent Act tenants and local authority secure tenants were in relevantly similar situations. He placed considerable weight on the judgment of the Strasbourg court in Larkos v Cyprus (1999) 30 EHRR 597. In that case, however, it appears that the only difference between Mr Larkos and a private tenant occupying property situated in a regulated area was that his landlord was the Government of Cyprus. The ECtHR recorded (at para 30) that the Government did not seek to argue that his rent was less than the market rate or that the tenancy was anything other than a typical landlord and tenant agreement.
- I have little difficulty in concluding that the first suggested comparator is not in a relevantly similar situation because of the significant differences between the two types of tenancy. The second suggested comparator (based on the comparison between a distant relative and one of the close relatives mentioned in section 113 of the 1985 Act) passes the third test under Article 14, and I therefore move on to consider the fourth and final test in relation to that comparator.
(iv) Did the difference in treatment have an objective and reasonable justification?
- On this issue we received evidence in the form of a witness statement from Mr Michael Gahagan, who is director of housing at the DTLR. He explained that secure tenancies were particularly valuable to those who hold them, and that there were a number of benefits unique to this type of tenancy. He instanced the right to buy their home at a discount, the more restricted grounds on which the landlord could obtain possession and the lower rent levels, all of which I have mentioned in paragraphs 36-37 above. His statement continues (at paras 16-18):
“Local authority housing is also a valuable and, in certain areas such as Greater London, an increasingly scarce resource which can be used to meet local housing needs. For many years, successive governments have been concerned to ensure that those in greatest housing need have access to such housing and have placed statutory limitations on the discretion of a local authority, as landlord, to choose their own tenants. Since, at least, the Housing Act 1936, local authorities, when granting tenancies, have been required to give ‘reasonable preference’ to persons in a number of specified statutory groups (eg those occupying unsanitary or overcrowded houses; large families; those living under unsatisfactory housing conditions). In 1977, the duty was extended to homeless persons to whom authorities owed a duty to secure accommodation. Under section 44 of the Housing Act 1980, authorities were first required to maintain a set of rules for determining priority as between applicant in the allocation of its housing accommodation.
Part 6 of the Housing Act 1996 introduced a new system for the allocation of local authority housing accommodation. Authorities can allocate only to ‘qualifying persons’ and are required to keep a register of ‘qualifying persons’. Broadly, they have power to decide who are, or are not, ‘qualifying persons’ subject to specific statutory exceptions. Authorities are required to have a scheme for determining priorities, and as to the procedure to be followed, in allocating accommodation. As regards priorities, ‘reasonable preference’ has to be give to specified categories of people (broadly those likely to have the most pressing housing needs). Part 6 did not include homeless persons in the ‘reasonable preference’ categories but an Order after the general election of 1997 provided that certain descriptions of homeless applicant should be given ‘reasonable preference’. Authorities are prohibited from allocating accommodation except in accordance with their scheme.
The statutory provisions relating to local authority housing allocations have developed over the years but they are based on a relatively consistent policy of assisting those with the greatest housing need to obtain housing. Since 1980, allocation has been based on rules, or schemes, through which authorities are required to ensure that priority is given to applicants in ‘reasonable preference’ categories. This remains the policy of the Government. The policy is necessary as, in many areas especially Greater London, even those in priority ‘reasonable preference’ categories have to wait a considerable time for an allocation.”
- It appears to me that this is pre-eminently a field in which the courts should defer to the decisions taken by a democratically elected Parliament, which has determined the manner in which public resources should be allocated for local authority housing on preferential terms. Parliament decided to continue to adopt the Rent Act concept of “a member of the tenant’s family” when identifying who might succeed to a secure tenancy, but to introduce a measure of legal certainty, a concept prized by Strasbourg, when explaining with precision the type of close relative who should be entitled to be the first (and only) successor to a secure tenancy. It is understandable why Parliament wished a home not to be broken up on the death of a secure tenant when his wife or other very close relative was living with him as a member of his family at that time. It is equally understandable why Parliament decided that this privilege should not be extended to a more distant relative like Mr Michalak who was living at the secure tenant’s home at the time of his death.
- For these reasons, I am of the clear opinion that the provisions of sections 87 and 113 of the 1985 Act, when applied to Mr Michalak’s case, are compatible with his rights under ECHR Article 14, and that he has not suffered discrimination of a type prohibited by that article.
7. The possession order
- It follows that as a matter of English law (the Human Rights Act apart) Mr Michalak had no legal right to remain in the flat after the expiry of the notice to quit (see paragraph 8 above). Any judge would be bound in these circumstances to grant the council a possession order once he was satisfied that all the necessary formalities had been observed.
- Mr Luba argued, however, that because the judge was not under the same kind of statutory duty to grant a possession order as appears in some modern statutory schemes (for example, section 127(2) of the Housing Act 1996), he was obliged as a public authority to act in a way which was compatible with the ECHR (Human Rights Act 1998 s 6(1)). Because the making of a possession order represented an interference with Mr Michalak’s right to respect for his home, the judge should not have made the order in the absence of evidence tending to show that the making of a possession order in Michalak’s case was necessary for one of the reasons set out in ECHR Article 8(2). Since the council adduced no such evidence, the possession order should not have been made.
- The reason why Mr Luba distinguished the present case from those cases in which a judge is obliged by statute to make a possession order was that in those cases the judge “could not have acted differently” so that section 6(1) of the Human Rights Act did not apply (see s 6(2) of that Act).
- In my judgment there was no need for any such evidence to be placed before the judge. The objective justification for the possession order lies in the statutory arrangements devised by Parliament for identifying who may succeed to successor tenancies and who may not following the death of a secure tenant. There is ample Strasbourg authority for the proposition that appropriate justification may be derived from a statutory scheme, and that it need not always be demonstrated on a case by case basis. In James v UK  8 EHRR 123 the ECtHR was confronted with a similar argument to the effect that independent justification had to be proffered for each individual act of leasehold enfranchisement. It was suggested (see para 68 of the judgment) that the legislation should have provided for judicial review going into the details and reasonableness of each proposed enfranchisement. The court disposed of this argument quite briefly:
“Such a system may have been possible, and indeed a proposal to this effect was made during the debates on the draft legislation. However, Parliament chose instead to lay down broad and general categories within which the right of enfranchisement was to arise. The reason for this choice, according to the Government, was to avoid uncertainty, litigation, expense and delay that would inevitably be caused for both tenants and landlords under a scheme of individual examination of each of many thousands of cases. Expropriation legislation of wide sweep, in particular if it implements a programme of social and economic reform, is hardly capable of doing entire justice in the diverse circumstances of the very large number of different individuals concerned.
It is in the first place for Parliament to assess the advantages and disadvantages involved in the various legislative alternatives available. In view of the fact that the legislation was estimated to be likely to affect 98 to 99 per cent of the one and a quarter million dwellinghouses held on long leases in England and Wales, the system chosen by Parliament cannot in itself be dismissed as irrational or inappropriate.”
- A similar approach is discernible in the decisions of the European Commission of Human Rights in Di Palma v UK (1988) 10 EHRR 149, 155-6 and in the judgment of the ECtHR in Mellacher v Austria (1989) 12 EHRR 391 at  and [52-53].
- It is also well established at Strasbourg that the role of the courts is to uphold the rule of law (and the rights of landowners, when established by law), and if a defendant has no legal right to remain in possession of residential premises the court is ordinarily bound to make the order the landlord seeks (subject to any statutory provisions whereby the order may then be suspended). In addition to Di Palma, the Commission’s decision in Wood v UK (1997) 24 EHRR CD 69, 70-71 is an example of the application of this principle.
- This is, of course, a quite different situation from that which was under consideration in the recent case of South Bucks DC v Porter  EWCA Civ 1549,  1 All ER 425. In that appeal gipsies challenged the decisions made by four local authorities to seek orders removing their mobile homes from land they occupied in breach of planning control. It was well settled as a matter of English law that in such cases a local authority, when deciding whether to seek a court order, had to strike a balance between the requirements of planning authorities and the needs of the defendants (and their families) whom they were seeking to remove from the particular land they were occupying (Mole Valley DC v Smith, Reigate and Banstead BC v Brown  2 PLR 22, 31). It is hardly surprising in those circumstances that a court of supervisory jurisdiction is now required to take Article 8(2) considerations into account in each individual case. It was in that context, which is far removed from the present case, that Simon Brown LJ said (at para 41):
“Proportionality requires not only that the injunction be appropriate and necessary for the attainment of the public interest objective sought – here the safeguarding of the environment – but also that it does not impose an excessive burden on the individual whose private interests – here the gipsy’s private life and home and the retention of his ethnic identity - are at stake.”
In the present appeal no such individual scrutiny is necessary, for the reasons I have set out in paragraphs 46-47 above.
- I would add, for the sake of completeness, that in Sheffield City Council v Smart  EWCA Civ 4, this court was concerned with two appeals against possession orders which the judge was bound to make against formerly homeless non-secure tenants whom the local authorities wished to evict from their homes because of their anti-social tendencies, Laws LJ recorded without comment at paragraph 7 that it was common ground that in the absence of the Human Rights Act 1998 neither appellant would have had a defence to the local authority’s claim for possession, and that the local authority’s decision to serve a notice to quit was amenable as a matter of jurisdiction to the supervision of the High Court by way of judicial review. On another occasion, when such a concession is not made, it may be necessary to examine the effect of the decision of this court in Wandsworth LBC v A  1 WLR 1246, 1256-8, where it was held that a decision by the headmaster of a maintained school to revoke the implied licence permitting a parent to enter school premises could be challenged on the grounds of procedural impropriety by way of defence to a private law action seeking injunctive relief against the parent. It is difficult, however, to see how such a challenge might avail a defendant like Mr Michalak, since the council can always rely on the statutory framework of the scheme for secure tenancies as a reason for deciding to seek possession.
- For all these reasons I would dismiss this appeal.
Lord Justice Mance:
- I agree, but add some observations of my own, mainly on the issue of the court’s role when asked to grant a possession order, since I have found this a complex area of law.
- On the issue of construction of ss 87 and 113 of the Housing Act 1985, s.3(1) of the Human Rights Act 1998 requires us to read and give effect to those sections in a manner which is compatible with the Convention rights. A potential circularity arises. If we read these sections as embodying a deliberate policy decision, taken in the interests of certainty, to delimit those who count as “a member of the tenant’s family” for the purposes of succeeding to a secure tenancy under the Act, that in a sense already begs the question which we have to determine – which is whether those sections need to be interpreted in a different way in order to reflect the basic rights reflected in Article 8. The circle must, nevertheless, be entered at some point, and I consider that it is appropriate to start from the position that Parliament was, on the face of it, concerned in Part IV of the Housing Act 1985 to introduce a simple delimitation of the concept of family. That is, in my view, the obvious interpretation, apart from the Convention.
- The question thus arises whether the Convention requires any different conclusion regarding the interpretation of ss 87 and 113. The argument ably presented on behalf of the appellant by Mr Luba QC is that it does (having regard to the Rent Act provisions relating to succession to tenancies), in order to avoid undue discrimination in the area of respect for family life and the home, protected under Article 8. It is not suggested that Article 8 alone could assist. That article cannot by itself confer any positive right to family life or to a home, or to the succession to the tenancy of a flat in which to live as a family or individually.
- However, it is submitted that, having chosen in respect of private sector tenants to confer an unlimited entitlement to the succession to a tenancy on “a person who was a member of the original tenant’s family residing with him in the dwelling house at the time of and for the period of 2 years before his death” (cf Rent Act 1977, paragraph 3 of Schedule 1), Parliament could not without discrimination confer a more narrowly delimited entitlement to succeed on local authority secure tenants under the Housing Act 1985. I agree with Brooke LJ that the entitlement conferred by s.87 of the 1985 Act and paragraph 3 of Schedule 1 to the Rent Act falls “within the ambit” of Article 8. Both statutory provisions provide protection for reasons that their terms show to be closely related to family life and/or use of the relevant dwelling-house as a home or residence. The argument that the former scheme is discriminatory, in relation to the latter, fails, however, because the two statutory schemes are so significantly different in their general nature and features, that persons within each are not in “an analogous or relevantly similar situation” for the purposes of Article 14: see eg Stubbings v UK (1996) 23 EHRR 213, paragraph 72. Further, in the case of the appellant any discrimination is irrelevant, because, on the judge’s findings and conclusions, with which I agree, the appellant would not have been entitled to be regarded as “a member of the original tenant’s family”, even in the unrestricted sense applicable under paragraph 3 of Schedule 1 to the Rent Act 1977.
- Since there is nothing discriminatory in ss 87 and 113, it follows that there is no reason to strive to interpret those sections in any sense other than their natural sense. That, as I have indicated, involves treating s 113 as defining for all purposes the concept of “member of the tenant’s family” used in s 87. The appellant was not on that basis entitled to succeed to the tenancy, which under s 89(3) of the 1985 Act ceased to be secure and was determined accordingly by service of a notice to quit expiring on 1st February 1999. The appellant has been a trespasser since these events.
- The Protection from Eviction Act 1977 s.3(1) nonetheless provides (with presently immaterial exceptions) that:
“Where any premises have been let under [such] a tenancy ….. and –
(a) the tenancy ….. has come to an end, but
(b) the occupier continues to reside in the premises or part of them,
it shall not be lawful for the owner to enforce against the occupier, otherwise than by proceedings in court, his right to recover possession of the premises.”
- 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  2 KB 180, Jones v Savory  All ER 820 and McPhail v Persons Unknown  Ch 447. However s.89 of the Housing Act 1980 now provides in a case such as the present that:
“…. the giving up of possession shall not be postponed (whether by the order or any variation, suspension or stay of execution) to a date not 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 delivered 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.”
- Mr Luba on behalf of the appellant submits that this position has now been radically affected by the Human Rights 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) the appellant’s home, so that Article 8(1) of the Convention is potentially engaged, irrespective of the appellant’s status or entitlement in law to remain there. That is, on authority, correct: see this court’s decisions in Qazi v Harrow LBC  EWCA Civ 1834 and Sheffield CC v Smart  EWCA Civ 04. “Home” in Laws LJ’s words in the latter case, is an autonomous concept and does not depend on any legal status as owner.
- 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 Human Rights 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”.
- Accordingly, Mr Luba submits, it was unlawful for the county court to act in a way which was incompatible with the respect due to the appellant’s home under Article 8. In particular, it was unlawful to interfere with the appellant’s right to respect for his home except under conditions specified in Article 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 the appellant was and remains a trespasser residing in the respondent’s flat. It follows, by the same token, that the possession order was made “for the protection of the rights” of the respondent in its flat.
- 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 the appellant’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. He cited to us in this connection passages from the speeches in the House of Lords in R (Daly) v Secretary of State for the Home Department  UKHL 26,  2 WLR 1622, emphasising the intensity of the review which may be required when a court has to assess whether the balance which a decision-maker has struck is proportionate. In the present case, no evidence was adduced by the respondent as to why it wanted possession, and the judge, Mr Luba submitted, had no basis for concluding that any order for possession would be proportionate or was “necessary in a democratic society” for the protection of the respondent’s rights.
- Mr Luba’s submission treats the county court’s decision as if it was the first or only relevant stage in the process, and requires the court, on that basis, to approach the making of an order for possession as (to some extent at least) the arbiter of social needs in the present area. The reality is that Parliament has, in the provisions of ss 87 and 113, considered and determined the extent to which those residing with a secure tenant should be entitled to succeed to the benefits of a secure tenancy. Outside the categories of spouse and member of the tenant’s family, as defined, others residing were not to succeed to any secure tenancy, and Parliament necessarily contemplated that the dwelling-house would become available once again to the relevant local authority for use in the ordinary way, as it should determine. That expectation is reinforced by the common law principle and statutory provisions relating to the making and suspension of possession orders identified in paragraph 7 above.
- In both Di Palma v UK (1988) 10 EHRR 149, 155 and Wood v UK (1997) 24 EHRR CD69, 70-71 the Commission gave short shrift to submissions that, in the first case, eviction from home following forfeiture of a lease for non-payment of a service charge and, in the second case, repossession for failure to repay a loan secured by a mortgage constituted infringements of Article 8. It held that these were steps necessary in a democratic society for the protection of the rights of, respectively, the landlord and the mortgagee. There was no suggestion in these cases that a court, before ordering possession, must undertake any wide-ranging exercise of balancing the comparative needs of a landlord or mortgagee against those of a home-occupier.
- In the present case, under the common law and statutory principles identified in paragraph 57, the local authority was entitled to a possession order, the operation of which the county court could postpone for a short period only. But Mr Luba’s submissions are not directed to any short-term relief which someone in the appellant’s position might seek. He argues for much greater significance to be attached to the fact of the flat being the appellant’s home. The fact that a dwelling-house was someone’s home would mean that the authority had in every case to justify a particular need to recover possession. Its general social and housing policy would be open for examination, whatever the intensity, in every case, and the court would have to undertake the exercise of balancing the general needs of the community and other actual or potential residents against the specific need or desire of the resident in occupation to remain in what had become his home, although not one which he had any legal right to occupy at all. I consider that Mr Luba’s submissions would tend to undermine the scheme of the Housing Act 1985 read in conjunction with the common law and statutory principles identified in paragraph 57.
- In some statutory contexts, the court is specifically assigned a broad role: see eg s.98 of the Rent Act 1977, under which
“…. a court shall not make an order for possession of a dwelling-house which is for the time being let on a protected tenancy or subject to a statutory tenancy unless the court considers it reasonable to make such an order and either –
(a) the court is satisfied that suitable alternative accommodation is available for the tenant, or
(b) the circumstances are as specified in any of the Cases in Part I of Schedule 15 to this Act.”
- In South Bucks DC v Porter  EWCA Civ 1549,  1 All ER 425, the question arose of the proper scope of a judge’s role under s 187B of the Town and Country Planning Act 1990, in the context of applications for injunctions restraining the appellant gypsies from continuing to live in mobile homes on land belonging to them, but occupied in breach of planning permission. Under subs (1) a local planning authority could apply for an injunction where it considered it necessary or expedient for any actual or apprehended breach of planning control to be so restrained, and by subs (2) it was provided that on such an application “the court may grant such an injunction as the court thinks appropriate for the purpose of restraining the breach”. This court held that, on an application under subs (2), although a judge was not required or entitled to reach his own independent view of the planning merits of the case, he should not grant injunctive relief unless he would be prepared to contemplate committing the defendant to prison for its breach, and that “he would not be of this mind unless he had considered for himself all questions of hardship for the defendant and his family if required to move, including necessarily, therefore, the availability of suitable alternative sites”. The decision of the local authority as the democratically elected and accountable body principally responsible for planning control in their area was relevant, but its relevance and weight would “depend above all on the extent to which they could be shown to have had regard to all the material considerations and to have properly posed and approached the art 8(2) questions as to necessity and proportionality” (para 39). Although the legitimate public aim of preserving the environment might only be achievable by removing the gypsies from the site, “that was not to say that the achievement of that aim must always be accepted by the court to outweigh whatever countervailing rights the gypsies may have, still less that the court is bound to grant injunctive (least of all immediate injunctive) relief”. Rather the court’s discretion was “absolute and injunctive relief was unlikely unless properly thought to be “commensurate” – in today’s language, proportionate” (para 41). The gypsies in South Bucks were both owners and occupiers of the land, albeit occupying it in breach of planning legislation. The present appellant has been at all material times a trespasser in the respondent’s flat, although that is his home. Mr Luba submits that those differences constitute no more than circumstances to be taken into account in the course of a wide-ranging balancing exercise paralleling that which the court held to be required in the South Bucks case.
- Another line of authority concerns the situation where legislation positively required the court to make a possession order. The line starts with Manchester CC v Cochrane  1 WLR 809, where this court considered the provisions of s 127 of the Housing Act 1996 specifying that, on application by the landlord “the court shall make an order” for possession bringing an introductory tenancy to an end, unless the provisions of s 128 apply. The court held that the most that the county court could do on such an application, if s 128 did not apply, was to adjourn possession proceedings pending determination of judicial review proceedings challenging the local authority’s decision. It held, at p 818F (distinguishing Avon CC v Buscott  QB 656), that any public law challenge which might be possible to the local authority’s decision could not afford any defence. The county court could not, on any view, prior to the Human Rights Act, itself go into any question of review of the exercise of or failure to exercise any public duty, since it was prohibited from so doing by s.38(3) of the County Courts Act 1984.
- In Poplar Housing and Regeneration Community Assoc Ltd v Donoghue  EWCA Civ 595,  3 WLR 183, the court was concerned with s 21(4) of the Housing Act 1988 as amended by s 96 of the Housing Act 1996, which provided that “the court shall make an order for possession of a dwelling-house let as an assured shorthold tenancy which is a periodic tenancy” if satisfied as to certain conditions. The issue was whether s 21(4) was consistent, or could be read consistently, with Article 8 of the Convention. The Lord Chief Justice, giving the judgment of the court, said this:
“68. Mr Holmes recognises that the defendant could not expect security of tenure, but he submits that there should be a residual discretion to protect the defendant’s basic human rights. He also submits that this would not in practice give rise to undesirable consequences to which the witnesses for the Department refer, but this is very much a matter of judgment.
69. There is certainly room for conflicting views as to the social desirability of an RSL being able to grant assured shorthold tenancies which are subject to section 21(4) of the 1988 Act. Mr Holmes considers the present policy mistaken. However, in considering whether Poplar can rely on article 8(2), the court has to pay considerable attention to the fact that Parliament intended when enacting section 21(4) of the 1988 Act to give preference to the needs of those dependent on social housing as a whole over those in the position of the defendant. The economic and other implications of any policy in this area are extremely complex and far-reaching. This is an area where, in our judgment, the courts must treat the decisions of Parliament as to what is in the public interest with particular deference. The limited role given to the court under section 21(4) is a legislative policy decision. The correctness of this decision is more appropriate for Parliament than the courts and the Human Rights Act 1998 does not require the courts to disregard the decisions of Parliament in relation to situations of this sort when deciding whether there has been a breach of the Convention.
70. The defendant’s lack of security is due to her low priority under the legislation because she was found to be intentionally homeless. She was and must be taken to be aware that she was never more than a tenant as a temporary measure. In the case of someone in her position, even if she is a mother of young children, it is perfectly understandable that Parliament should have provided a procedure which ensured possession could be obtained expeditiously and that Poplar should have availed itself of that procedure.
71. Tenants in the position of the defendant have remedies other than under section 21(4) which are relevant when considering article 8. There are provisions for appeal against the decision that a person is intentionally homeless. There is the regulatory role of the Corporation and there is the ombudsman. There is also the fact that RSLs are subject to considerable guidance as to how they use their powers.
72. We are satisfied, that notwithstanding its mandatory terms, section 21(4) of the 1998 Act does not conflict with the defendant’s right to family life. Section 21(4) is certainly necessary in a democratic society in so far as there must be a procedure for recovering possession of property at the end of a tenancy. The question is whether the restricted power of the court is legitimate and proportionate. This is the area of policy where the court should defer to the decision of Parliament. We have come to the conclusion that there was no contravention of article 8 or of article 6.”
- R v Bracknell Forest BC, ex p McLellan  EWCA Civ 1510,  33 HLR 86 was another case concerned with termination of an introductory tenancy under ss 127 and 128 of the Housing Act 1996. But, by now, the Human Rights Act was in force. Waller LJ identified the need to consider s 127, at two levels, “macro” and “micro”. He regarded the Poplar decision as concerned with the legislation which determined the problem at the macro level. The legislation governing introductory tenancies seemed to him different, in that it expressly introduced consideration of individual tenants’ positions at the micro level, by a requirement in s 128(3) to provide reasons for seeking possession and by machinery by which a tenant might seek a review of those reasons. In those circumstances, Waller LJ accepted that a tenant must now (having regard to s 7(1)(b) of the Human Rights Act) have the right to rely on his or her Convention rights in any proceedings. But he did not accept that this meant that they had to be available in every context by way of a defence. He concluded that s 127 was consistent with such a right, in that the machinery for review under the Act and the court’s power (indicated in Cochrane) to adjourn if necessary to enable judicial review proceedings to be taken, provided adequate protection against any breach of Article 8.
- I do not therefore accept Mr Luba’s explanation of Poplar and McLellan as examples of the application of s 6(2)(a) of the Human Rights Act. They are not cases where the court as a public authority was acting in a way which was incompatible with a Convention right, but could not have acted differently, and so was not acting unlawfully. They are cases where the overall scheme chosen by Parliament was consistent with the Convention, and where the court could both act consistently with the Convention and comply with the statutory requirement to make an order.
- Finally, in Sheffield CC v Smart  EWCA Civ 04, this court was concerned with the termination of non-secure tenancies granted to homeless persons by public authority landlords. In contrast to the statutory position in the cases of Donoghue and McLellan, considered above, there was no mandatory statutory requirement obliging the court to make an order for possession upon proof of notice to quit. Mr Luba, representing the tenants there as here, submitted that it followed that it was open to the county court to refuse to make any order for possession, if the court’s obligations under ss 6 and 8 of the Human Rights Act so required, and that the judge should have undertaken a weighing exercise at the “micro” level (ie on the particular facts of each case) in order to determine whether they did in the particular cases before him.
- Laws LJ (giving the only full judgment) started by distinguishing between cases such as the South Bucks case, where, as he put it, the court was required by statute “to adjudicate on the merits or otherwise of coercive action in the individual case” and cases like Donoghue and McLellan, where the statutory regime excluded any such discretion. He observed that there was no such express exclusion in the statutory regime regarding homeless persons. But he considered that Mr Luba’s submissions would be tantamount to converting the non-secure tenancies enjoyed by homeless persons into secure tenancies and tantamount to introducing a condition, not unlike the requirement of reasonableness applicable under s 98 of the Rent Act 1977. Such a conclusion was not in his opinion consistent with the scheme of the Housing Act for the assistance of homeless persons, and Mr Luba’s submissions amounted in truth to a “macro” assault on that scheme. The case came closer to Donoghue and McLellan than to the line of authority including South Bucks.
- Laws LJ contemplated, at paras 40 and 43, the possibility (a) that:
“if a tenant sought a judicial review upon being served with a notice to quit, the Administrative Court might now look at the matter more closely than upon the conventional Wednesbury approach, not least given the recent decision of their Lordships’ House in Daly …., especially the observations of Lord Cooke of Thornton”
and also (b) that at the stage of 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 might be obliged to address it in deciding whether or not to make an order for possession.”
- At paras 44-45, he expressed the further view that “the effect of Articles 6 and 8 was 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” and that “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”. If I have understood the reasoning correctly, that last comment refers back to the possibility identified in para 40 of “the rare case where something wholly exceptional has happened since service of the notice to quit”.
- So understood, the effect of this court’s decision in Sheffield CC v Smart was that the scheme of the homelessness legislation confined the county court’s role in granting a possession order to considering (a) whether there was any arguable case for judicial review in the Administrative Court of the local authority’s conduct, if judicial review was sought (in which case the court would adjourn the matter pending such review in the Administrative Court) and (b) whether anything wholly exceptional had happened since service of the notice to quit (in which case the county court judge would himself have to consider the implications of Article 8). Thus, although this court might, perhaps, have taken a different view after the Human Rights Act, it preferred to maintain an approach which in the result (a) mirrors that established prior to that Act and (b) places the onus, on a person challenging the consistency with Article 8 of the Convention of a local authority’s attempts to obtain possession, to pursue that challenge by the conventional route of judicial review.
- The judgment in Sheffield CC v Smart does not refer to the line of cases establishing the court’s duty at common law, prior to the Human Rights Act, to make a possession order against a trespasser with no defence: cf Sheffield Corp v Luxford, Jones v Savory and McPhail v Persons Unknown, cited above, or to the statutory restrictions on the right to suspend a possession order once made. The effect of Sheffield CC v Smart is, however, to preserve the relevance and operation of both.
- The reasoning and decision of this court in Sheffield CC v Smart appear to me to be so closely applicable as to be incapable of satisfactory distinction in the present case. The scheme of the Housing Act ss 87 and 113 deliberately excludes a person in the appellant’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 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 Article 8 is thus catered for by the availability of judicial review – or, as Laws LJ pointed out in Sheffield CC v Smart, 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 Article 8.
- It was common ground before us between Mr Howell QC for the Secretary of State and Mr Luba QC for the appellant that the court in Sheffield CC v Smart did not have cited to it the previous decision of this court in Wandsworth CC v A  1 WLR 1246. Mr Luba suggested that this decision undermines the court’s conclusion in Sheffield CC v Smart that a public law case could only be raised by separate judicial review proceedings. The issue in Wandsworth CC v A was whether a parent excluded from a local education authority school could resist proceedings for an injunction restraining her from trespassing on the school premises by arguing that the headmaster’s purported termination of her private law licence to attend on the premises as a parent for certain purposes was invalidated by his failure as a public authority to comply with his basic public law duty to hear her side of the story before deciding so to act. In a judgment given by Buxton LJ, the court held that she could. The court applied Wandsworth LBC v Winder  AC 461. It distinguished cases, including Avon CC v Buscott, above, where no underlying private law right existed and the gypsies were seeking simply to rely on an alleged breach of a public law duty to resist proceedings for possession brought against them as trespassers. It is unnecessary (and it would, since we did not hear argument upon it, be inappropriate) to consider whether the circumstances in Sheffield CC v Smart might fall within this last category (considered by Buxton LJ at pp 1257-8).
- However, whether or not the circumstances in Sheffield CC v Smart would have fallen within this last category, it seems to me that the present case clearly does. Here, there was and is no private law background. Pursuant to s.89(3) of the Housing Act 1985, Mr Lul’s secure tenancy ceased to be secure at a date subsequent to his death. The notice to quit then served was neither necessary in relation to nor directed towards the appellant. It was required simply to terminate Mr Lul’s residual periodic tenancy, and it was addressed accordingly to his personal representatives. Although the appellant was licensed by Mr Lul to live at the premises, the appellant was, at least from the time of that termination, a simple trespasser as regards the respondent. Indeed, so far as appears, the respondent was unaware of the appellant’s presence until he wrote to the respondent on 8th January 1999.
- I would add that there was in this case in any event no plea in the defence that any step taken by the respondent was invalid on public law grounds or under the Convention. There was a denial that the notice to quit was “valid or effective to terminate the [appellant’s] interest” in the flat, but that was in the context of the original defence that the appellant was a successor to Mr Lul’s secure tenancy under s.87. No other private law interest is, or has ever been, asserted.
- It is appropriate to consider where the decision in Qazi fits into the above picture. First, I note that Laws LJ had this decision in mind, since he referred to and applied it: para 26. Secondly, in Qazi the court was not concerned with any issues under Article 8(2). Such issues were not considered below, because the Recorder took the (erroneous) view that Article 8(1) did not apply, and this court, having decided that Article 8(1) was engaged, simply remitted the matter to the county court: paras 8, 58 and 67. Whether or not there might prove in the county court to be short answers to the questions raised by Article 8(2) was simply not before the Court of Appeal in Qazi. Thirdly, Qazi may belong to different category of case to either Sheffield CC v Smart or the present. In Qazi it was not some statutory scheme which determined the tenancy of the joint tenant who continued to reside in the premises which had been let originally to him and his then wife. It was an express term of the tenancy agreement which provided that either joint tenant could terminate the tenancy by serving a written notice to quit giving four weeks’ notice. His wife, Saman Qazi, had moved out, serving such a notice, and leaving her husband in residence. He by the time of trial was her former husband; he had re-married and was residing there with the five-year old child of his new partnership. Without having heard any argument or therefore expressing any firm view, an argument that Parliament had foreclosed the scrutiny that was sought under Article 8(2) might present itself less compellingly in that situation.
- Before leaving this appeal, I end by noting that by the time of the hearing before the judge, the appellant had had well over two years to find an alternative home. He invoked the protection of the Convention for the first time on 10th May 2001, some seven months after it achieved domestic force and only a little over a month before trial. Even if there had been a proper basis for requiring the county court judge to undertake, in the light of Article 8, an exercise of weighing in the balance the appellant’s and the respondents’ respective interests, the appellant’s case would appear to have involved the unlikely proposition that the right to respect for a home provided by Article 8 can give a resident (the lawful basis for whose residence has ended) a measure of almost permanent security.
- Be that as it may, for the reasons given by Brooke LJ in conjunction with the further reasons which I have set out in paragraphs 53 to 83, I agree that this appeal should be dismissed.
Mr Justice Park:
- I agree with both judgments.
Order: As drafted by counsel.
(Order does not form part of the approved judgment)
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