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Sheffield City Council v Smart  EWCA Civ 4 (25th January, 2002)
| || ||Neutral Citation Number:  EWCA Civ 4|
| || ||Case No: B2/2001/1402 & B2/2001/2166|
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SHEFFIELD COUNTY COURT
(HH JUDGE BARTFIELD) & SUNDERLAND COUNTY
COURT (HH JUDGE WALTON)
| || ||Royal Courts of Justice|
London, WC2A 2LL
| || ||25 January 2002|
B e f o r e :
LORD JUSTICE THORPE
LORD JUSTICE LAWS
LORD JUSTICE KAY
| || |
Sheffield City Council
| ||And –|
| || Central Sunderland Housing Company Limited |
(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)
Ashley Underwood QC & Tom Tyson (instructed by Sheffield City Council for the 1st Respondent)
Jan Luba QC & Liz Davis (instructed by Irwin Mitchell for the 1st Appellant Emma Smart)
Ashley Underwood QC & Richard Merrit (instructed by Central Sunderland Housing Company Limited Legal Services for the 2nd Respondent)
Jan Luba QC & Beatrice Prevatt (instructed by Ben Hoare Bell for the 2nd Appellant Janet Wilson)
HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice Laws:
- These two appeals, which we have heard together, arise out of possession proceedings respectively in the Sheffield and Sunderland county courts. They require us to consider the impact of certain aspects of the European Convention on Human Rights (“ECHR”) upon the letting of a dwelling house under a non-secure tenancy to a homeless person and the subsequent termination of the tenancy by the public authority landlord.
- In the Sheffield case the appellant/defendant was granted a tenancy of premises at 14 Daresbury Place, Sheffield on 18 October 1999. The respondent/claimant, the Sheffield City Council, served a notice to quit upon her on 30 August 2000, thus terminating her contractual tenancy 28 days later. The respondent issued possession proceedings on 4 October 2000. After a contested hearing His Honour Judge Bartfield made an order for possession on 7 June 2001, and on the same day granted permission to appeal to this court.
- In the Sunderland case, the appellant/defendant was granted a tenancy of premises at 9 Fell Road, Ford Estate, Sunderland on 11 October 1999. The Sunderland City Council (predecessors of the respondents, the Central Sunderland Housing Company Limited) served a notice to quit upon her on 9 August 2000, and so her contractual tenancy was determined 28 days thereafter. Possession proceedings were commenced on 21 September 2000. Again there was a contested hearing in the county court. On 24 September 2001 His Honour Judge Walton made an order for possession but refused permission to appeal. Permission was granted by Robert Walker LJ on 6 November 2001.
- The circumstances of the two cases are similar. Each appellant had become homeless unintentionally within the meaning of Part VII of the Housing Act 1996 (“HOUSING ACT 1996”) (or was taken to have done so). Each sought accommodation from her local housing authority. Accepting in each case that the appellant was unintentionally homeless, the authority owed a duty to provide her with accommodation. Each appellant was granted a non-secure tenancy of accommodation under HOUSING ACT 1996 s.193. I shall set out or summarise the relevant statutory materials and authorities in due course.
- In both cases complaints of nuisance were made by the appellants’ neighbours. In Sheffield, the complaints started in January 2000. On 19 July 2000, on her birthday, the appellant got drunk. Neighbours asked her to turn her music down. The respondent wrote to her on 20 July 2000 warning that “any further incidents of nuisance will result in the Housing Department requesting possession of your flat”. Her neighbours complained of another incident in the early hours of the morning of 5 August 2000. She disclaimed responsibility for that, but in the event the respondents served a notice to quit, as I have said, on 30 August 2000.
- In Sunderland, the first complaint seems to have been on 12 October 1999, one day after the tenancy commenced. Thereafter there were other complaints, in particular to the effect that youths were congregating about the premises in a way which upset other residents. There was a written complaint on 23 May 2000. On 24 May 2000 the appellant was interviewed by a housing officer. After more complaints she was interviewed again on 4 July 2000, and on 6 July 2000 the respondent’s Safer Estates Task Force wrote to the appellant indicating that a notice to quit would be served if there were any more complaints. Unfortunately, there were more complaints in August 2000; and as I have said a notice to quit was served on 9 August 2000. It was accompanied by a letter giving the reasons for the notice by reference to the complaints which had been received. I should say that at the trial before His Honour Judge Walton counsel for the respondent did not challenge evidence put forward by the appellant to the effect that in fact she had not been involved in the disturbances which had given rise to the complaints against her. The respondent’s case was that the council had acted reasonably on the information before them, whether in the event the complaints had been true or not.
- The following propositions are common ground:
i) In the absence of the Human Rights Act 1998 (“HRA”) neither appellant would have had a defence to the respondent’s claim for possession.
ii) Both respondents, and the court below and this court, are public authorities within the meaning of s.6 HRA.
iii) Each respondent’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.
iv) Although in each case the notice to quit (and in the Sunderland case the issue of possession proceedings) ante-dated the coming into force of HRA on 2 October 2000, the appellants may rely on the Convention rights to the extent that their points are good ones on the merits.
- The material provisions of HRA are as follows:
“2(1) A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any -
(a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights, …
6(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2) Sub-section (1) does not apply to an act if –
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently:
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.
(3) In this section ‘public authority’ includes -
(a) a court or tribunal,
(b) any person certain of whose functions are functions of a public nature,
(c) but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.
7(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may –
(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or
(b) rely on the Convention right or rights concerned in any legal proceedings,
but only if he is (or would be) a victim of the unlawful act.
8(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy or make such order within its powers as it considers just and appropriate.
22(4) Paragraph (b) of subsection (1) of section 7 applies to proceedings brought by or at the instigation of a public authority whenever the act in question took place; but otherwise that subsection does not apply to an act taking place before the coming into force of that section.”
- The Convention rights are set out in Part I of Schedule 1 to HRA. I should cite the following:
1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…
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 national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
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.
THE FIRST PROTOCOL
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
The housing legislation
- I should next set out or describe the relevant provisions of the housing legislation. There is first an important general provision. By s.21(1) of the Housing Act 1985 (“the 1985 Act”):
“The general management, regulation and control of a local housing authority's houses is vested in and shall be exercised by the authority and the houses shall at all times be open to inspection by the authority…”
Next I should explain that until 1980, when the Housing Act of that year was passed, tenants of local authority housing had no security of tenure. The Act of 1980 has been succeeded by later legislation. Now local authority tenancies are, generally, secure tenancies by force of s.79 of the 1985 Act. Secure tenancies are subject to a special regime under the 1985 Act such that the tenant may not be evicted save by legal proceedings in which the landlord proves that one or more of certain objective grounds specified in Schedule 2 to the 1985 Act apply to the case: and even then the court will have a discretion whether to make an order for possession. However some local authority lettings are not secure tenancies. By Schedule 1 paragraph 1A to the 1985 Act a tenancy is not a secure tenancy if it is an introductory tenancy (introductory tenancies were the subject matter of this court’s judgment in the case of McLellan (Court of Appeal, 16 October 2001), to which I shall refer further). Of more direct relevance are the terms of paragraph 4 of Schedule 1 to the 1985 Act:
“A tenancy granted in pursuance of any function under Part VII of the Housing Act 1996 (homelessness) is not a secure tenancy unless the local housing authority concerned have notified the tenant that the tenancy is to be regarded as a secure tenancy.”
- I can move next to the Housing Act 1996 (“the 1996 Act”) which contains the measures which impose and define the duties of local authorities towards homeless persons. S.193 provides in part:
“(1) This section applies where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally.
This section has effect subject to section 197 (duty where other suitable accommodation available).
(2) Unless the authority refer the application to another local housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant.
(3) The authority are subject to the duty under this section for a period of two years (“the minimum period”), subject to the following provisions of this section…
(6) The local housing authority shall cease to be subject to the duty under this section if the applicant-
(a) ceases to be eligible for assistance,
(b) becomes homeless intentionally from the accommodation made available for his occupation….
“An applicant has the right to request a review of-
(a) any decision of a local housing authority as to his eligibility for assistance,
(b) any decision of a local housing authority as to what duty (if any) is owed to him under sections 190 to 193 and 195 to 197 (duties to persons found to be homeless or threatened with homelessness),…”
“If an applicant who has requested a review under section 202-
(a) is dissatisfied with the decision on the review,…
he may appeal to the county court on any point of law arising from the decision or, as the case may be, the original decision…
“A local housing authority shall not under section 206(1)(a) discharge their housing functions under this Part by providing accommodation other than-
(a) accommodation in a hostel within the meaning of section 622 of the Housing Act 1985, or
(b) accommodation leased to the authority as mentioned in subsection (2) below,
for more than two years (continuously or in aggregate) in any period of three years.
This applies irrespective of the number of applications for accommodation or assistance in obtaining accommodation made by the person concerned.”
The Decisions Below
- In Sheffield the judge held (indeed he stated the point to have been conceded: paragraph 5) that the respondent’s decision to terminate the appellant’s tenancy by service of a notice to quit amounted to a “determination of her civil rights” within the meaning of Article 6(1) ECHR. But he also held (paragraph 5) that the availability of judicial review of that decision fulfilled the requirements of Article 6(1). He proceeded to consider Article 8 ECHR. He accepted (paragraph 6) that the bringing of possession proceedings amounted to an interference with respect for the tenant’s home, but held (paragraphs 8 – 10) that Parliament in the housing legislation had struck the balance between tenants’ individual rights and housing policy as a whole. In particular (paragraph 9) the local authority was not required to determine in the individual case where the balance lay. Accordingly (in effect) the interference with the appellant’s Article 8(1) rights was justified under Article 8(2). Thus in the judge’s view there was no ECHR defence to the claim for possession.
- In Sunderland the judge also held that service of the notice to quit engaged Article 6, and that judicial review fulfilled the requirements of Article 6(1). As for Article 8, he held that the local authority need only demonstrate that the decisions to serve a notice to quit and seek possession were lawful in conventional public law terms: paragraph 47. However the judge proceeded to consider for himself whether the local authority’s action was proportionate, given the court’s own responsibilities as a ‘public authority’ within HRA s.6: and he held that it was. He concluded with a finding that Article 14 ECHR, which had also been canvassed by the appellant, added nothing to the appellant’s argument on the facts.
The Appellants’ Submissions
- Mr Luba QC advances these contentions.
i) Having correctly found that Article 6(1) ECHR was engaged in each of these cases by service of the notice to quit and the institution of possession proceedings, the judges were wrong to hold that the requirements of Article 6 were met by the available avenue of judicial review.
ii) Service of the notices to quit and institution of the possession proceedings in each case constituted a prima facie violation of the appellants’ rights under Article 8(1) ECHR. But Mr Luba mounted no very vigorous attack on the entitlement of the local authorities to take these steps. The core of his case lay in the proposition that once the possession claims came for trial in the county court, it was the judge’s duty under Article 8(2) ECHR to decide for himself whether an order for possession was necessary and proportionate to the purpose for which it was sought, namely (as I assume Mr Luba would accept) the fair and orderly management of the council’s housing stock. It was submitted that such an exercise would require the judge to hear evidence about the complaints made against the tenant, to assess their gravity, and to consider any particular matters put forward by the tenant in support of her claim to remain where she was. In short, if in any such case a possession order was to be made it would only be upon a finding by the county court judge that the order was objectively justified by reference to Article 8(2) ECHR.
iii) In contrast to the position relating to introductory tenancies (considered in McLellan) and assured shorthold tenancies (considered in Donoghue (2001) 33 HLR 73) there is no mandatory requirement imposed by statute such that the county court is obliged to make an order for possession in the case of a non-secure tenancy upon proof of a regular notice to quit properly served. In those circumstances it is open to the county court judge to refuse to make an order for possession if his obligations under ss.6 and 8 HRA so require.
iv) No proper Article 8(2) investigation was conducted by the court in either of these cases. The appeals must therefore be allowed, and the cases remitted for further hearings in the county court. Although as I have made clear there was no contest of the appellant’s evidence in the Sunderland case that she had not been involved in the disturbances complained of, Mr Luba (as I understood him) accepted that if his appeal succeeds in principle, the respondent local authority should have the opportunity of deploying its factual case on the merits at a further hearing.
The Respondents’ Arguments
- A respondent’s notice has been put in in the Sheffield case, asserting that Article 6 was not engaged by the notice to quit or at all, and that there was no interference with the appellant’s rights under Article 8(1): alternatively any interference was justified under Article 8(2) and the judge was not required to undertake any wider or deeper assessment of the position than in fact he did. Mr Underwood QC and his respective juniors have put in a composite skeleton argument on behalf of both respondents, and without objection from Mr Luba the points canvassed in the Sheffield respondent’s notice are in effect live in both appeals.
The Issues Considered
- The arguments about Article 6 which have been canvassed in this case in the end seem to me to be nothing more than a diversion from the real questions which we have to decide. It is in my judgment obvious that each appellant possessed “civil rights and obligations” arising (as a matter of municipal law, without regard for the moment to ECHR) from the tenancy to which she was a party. It is no less obvious that the determination of those rights and obligations fell to be conducted by an impartial and independent tribunal, in the shape of the local county court. If the local authority landlord serves a notice to quit and seeks possession, as was done here, the county court would have to adjudicate upon any issues arising in relation to the validity of the notice and the procedures undertaken in the possession claim. In short the landlord can only enforce its actual or putative rights to possession by establishing in the county court that it has taken all necessary and proper steps to do so. In addition, the local authority’s administrative decision to issue a notice to quit was, as is readily conceded by Mr Underwood, subject to the judicial review jurisdiction of the High Court. Thus leaving aside the possible bite of ECHR, the legality of anything done or not done in the administration of these tenancies was without doubt subject to adjudication by a tribunal which fulfilled the requirements of Article 6(1).
- Mr Underwood’s written submissions on Article 6 (I refer to his composite skeleton argument, paragraph 8) seem to me with respect to confuse the question whether on the facts of these cases the tenants had civil rights and obligations whose determination had to be conducted by an independent and impartial tribunal with the different question whether the appellants’ rights under Article 8 ECHR demanded an adjudication (which would no doubt have to comply with Article 6) of questions beyond (i) whether the notice to quit had been issued, and possession proceedings commenced and pursued, consistently with conventional domestic public law principles, in particular the Wednesbury principle, and (ii) whether the notice to quit and issue and continuance of the possession proceedings to trial fulfilled all necessary formal and procedural requirements under the ordinary domestic law of landlord and tenant.
- Mr Luba submitted that Article 8(2) ECHR requires the court to undertake an altogether deeper inquiry. He relied also on Article 1 of the First Protocol, and Article 14 ECHR. For reasons which I shall briefly later explain there is with respect nothing in these last two areas of contention. The case is all about Article 8. As for Article 6(1), its standards are as I have said satisfied by the local county court if the Convention demands no more than judicial determination of the relevant domestic law requirements. But in my judgment they are also satisfied if Mr Luba is right, and the tenant is entitled to an investigation of the question whether or not her eviction is justified under Article 8(2) as being necessary and proportionate to the council’s legitimate aim in seeking it. As I have shown (paragraph 14(iv) above) Mr Luba placed much emphasis on the trial stage of the process, in contrast to the earlier stages of service of the notice to quit and issue of the possession proceedings. On his case, the investigation required by Article 8(2) could and should be carried out by the county court judge. On that basis, again there would plainly be no violation of Article 6(1).
- However Mr Underwood submitted that if, contrary to his primary argument, Article 8(2) entered into the matter at all, the county court was in no position to address it; the judge would have to adjourn the possession proceedings for a judicial review to be sought in the Administrative Court. I shall deal with these rival submissions upon the question of venue when I come to the substantive arguments on Article 8(2). But on the footing that Mr Underwood’s approach to that issue is correct, there would in my judgment be no less ample compliance with Article 6(1) than upon Mr Luba’s alternative. That is because the judicial review court would possess and assert whatever breadth of jurisdiction was required in order to determine the issues properly arising under Article 8(2). It would possess what the Strasbourg court has called “full jurisdiction”: Albert and Le Compte v Belgium 5 EHRR 533. I would with respect repeat what was said by Waller LJ in paragraph 95 of his judgment in McLellan:
“Judicial control over the legality of a decision does not require a complete rehearing of the merits. But it seems to me that in considering whether a section of a statute is compatible or not, this court should be inclined to assume that the administrative court will at least be likely to ensure that its procedures will enable it to test the legality of a decision, and in particular whether that decision infringes the human rights of a tenant such as the tenants in the appeals before us. Support for this view appears from paragraph 89 of Halsbury’s Laws Vol I(1) 4th Ed. reissue 2001, where it says ‘Where the exercise of a discretionary power is liable to interfere with fundamental human rights, the courts will examine the decision maker’s actions more rigorously than where such interests are not directly affected by the action taken…’ citing Lord Hope in R v DPP ex p Kebilene  3 WLR 972 at 993-994.”
Earlier at paragraphs 85 – 94 Waller LJ cited substantial extracts from the speech of Lord Hoffmann in Alconbury  2 WLR 1389, to which I have paid close attention but with great respect need not set out.
- For my own part, I would put this matter of the amplitude of the judicial review jurisdiction somewhat more broadly. Before incorporation of the Convention rights there arose from time to time troubling questions in the Strasbourg court whether, in one context or another, judicial review provided a sufficient remedy for the purposes of Article 13 ECHR. Because the Convention was then no part of our municipal law there could be no a priori assumption that its requirements fell within the purview of the municipal court whose business it was to see that public bodies kept within the law. Although the pattern was by no means uniform, there were certainly instances when the European Court of Human Rights held that Article 13 was not satisfied by the availability of judicial review. (The considerations involved are illuminated by the citation from the opinion of Mr Bratza as he then was in Bryan v UK (1995) 21 EHRR 342 given by Waller LJ at paragraph 86 in McLellan). But it seems to me that the position since 2 October 2000, when HRA took effect, is necessarily otherwise. This is for reasons of principle which spring from the very nature of the judicial review jurisdiction. As is very well known that jurisdiction exists, and has long existed, as the means by which the exercise of power by any public authority is strictly limited to the scope and purposes of the power’s grant, and subjected also to the common law’s insistence on rationality and fairness. Before 2 October 2000 the Convention rights did not, at least not directly, measure or confine the scope or purpose of the powers which any public authority enjoyed. But since then, compliance with the Convention rights listed in Part 1 of Schedule 1 to the HRA is a condition of the lawful exercise of power by every public authority, where the Convention’s subject-matter is involved. It follows in my judgment that the High Court’s ancient jurisdiction strictly to keep inferior bodies within the law now requires it (absent an effective alternative judicial remedy) to review the use of power by such bodies for compliance with ECHR. This is not an extension of the jurisdiction. That has not changed. What has changed is the substantive law which governs the actions and omissions of public authorities. In the result (and here I leave aside the possible availability of other remedies which should be exercised first), whereas before 2 October 2000 judicial review’s effectiveness as a remedy for ECHR violations was a contingent circumstance, now it is a necessary truth.
- I believe that this approach to the judicial review jurisdiction and the Convention is, with respect, consistent with the reasoning of their Lordships’ House in Daly  2 WLR 1389 and Alconbury. But I need say no more about Article 6. I turn to Article 8.
- Mr Underwood’s first submission on this part of the case was that Article 8 is not “engaged” at all. I use the quotation marks to reflect Mr Underwood’s observation, with which I have some sympathy, that the use of the term “engaged” is liable to be misleading and unhelpful. Plainly we have to consider the impact of Article 8, and to that extent it may be said to be “engaged”; but the real question is whether on the facts there is prima facie any violation of the tenant’s right to respect for her home under Article 8(1), constituted by the council’s actions and decisions culminating in an order for possession being made against her. Mr Underwood submitted that there was no such violation. He drew attention to the language of Article 8(1), and its use of the word “respect”. This, he said, was a flexible concept; for which proposition he referred to Abdulaziz  EHRR 471, paragraph 67, and Samaroo (Court of Appeal, 17 July 2001). This latter case concerned deportation orders made under the Immigration Act 1971 which were claimed to violate the appellants’ Article 8 rights. After referring to earlier authority Dyson LJ said this at paragraph 36:
“In my judgment, in a case such as this, the court should undoubtedly give a significant margin of discretion to the decision of the Secretary of State. The Convention right engaged is not absolute. The right to respect for family life is not regarded as a right which requires a high degree of constitutional protection.”
- Against this background Mr Underwood urged a number of factors which taken together, he submitted, demonstrated that there was here no prima facie violation of Article 8(1) whatever. As he pointed out, these factors would also be material to the nature of the exercise required to be conducted under Article 8(2), if his primary submission on Article 8(1) were rejected. The factors are as follows.
i) These appellants were homeless, and were provided with accommodation by the respondents which, but for the relevant provisions of Housing Act 1996 and the respondents’ fulfilment of their duties under it, they would not have enjoyed at all.
ii) By s.193(3) of Housing Act 1996 the duty to house someone qua homeless person extends for two years only.
iii) Under the legislation homeless persons are accorded rights which in one important respect significantly exceed the rights to housing enjoyed by other persons against local housing authorities: upon the relevant statutory conditions being demonstrated, a homeless person is entitled to be housed then and there; he/she does not have to wait in the “queue” which exists for those seeking local authority housing in the ordinary way under Part VI of Housing Act 1996 (whose provisions I need not describe).
iv) The effect of Schedule 1 paragraph 4 to the 1985 Act, together with s.207 of Housing Act 1996, is that secure tenancies are not to be made available to persons housed as homeless persons. A homeless person may be provided with accommodation as a council tenant in the ordinary way (as I have said, under Part VI of Housing Act 1996); and such accommodation may consist in the same housing as had been provided to him/her as a homeless person under s.193. That is the circumstance contemplated by the power given in paragraph 4 of Schedule 1 to “[notify] the tenant that the tenancy is to be regarded as a secure tenancy”. But where that happens, the tenant is no longer being housed pursuant to the council’s duty to homeless persons, but simply as a council tenant within Part VI.
v) Where a homeless person, housed as such by the local authority, is evicted pursuant to a notice to quit and possession proceedings, the council’s duty under s.193 does not necessarily fall away. Within the two-year period it continues until and unless terminated by an event which engages s.193(6). If the local authority were to assert that she was intentionally homeless (s.193(6)(b)) by virtue of her conduct which led to their serving the notice to quit, she would, upon putting the matter in issue, be entitled to an internal review on the merits within s.202(1), and thereafter (if she lost at the review) to an appeal to the county court on a point of law under s.204. The scope of the county court’s jurisdiction on such an appeal is effectively the same as that of a conventional judicial review.
- Mr Underwood submitted that there is no prima facie violation of Article 8(1) by action taken for possession in cases such as these. Essentially the argument (if I may venture to summarise it in my own words) runs as follows. The Convention recognises that there is a balance to be struck between public interest and private right; and all these considerations which I have enumerated, taken together, lead to the conclusion that the statutory regime for the accommodation of homeless persons, including the right of the local authority to serve and act on a notice to quit relating to such a person’s non-secure tenancy, involves no actual or potential violation of Article 8(1) because the necessary balance has effectively been struck by the legislation itself. So long as the council’s decision to seek possession, and the decision’s implementation, comply with conventional public law standards, and the legal process undertaken to obtain possession complies with the relevant private law requirements, there can be no interference with the tenant’s Article 8(1) right to respect for his or her home.
- I do not agree. However flexible is the notion of “respect” in Article 8(1), it seems to me to be plain that the accommodation given to a person under s.193 has to be treated as that person’s home when she moves into it, albeit her security of tenure is fragile and temporary. And in my judgment it is no less plain that a court eviction order must, on the face of it, be treated as an interference with her right to respect for her home under Article 8(1). In Qazi (Court of Appeal, 3 December 2001) the question was whether premises in which the appellant admittedly had no legal or equitable interest might nevertheless be his home for the purposes of Article 8(1). Answering the question in the affirmative, Arden LJ at paragraph 56 stated that the applicable test to determine an issue of that kind was to be found in the Court’s decision in Buckley v UK (1996) 23 EHRR 101. In that case the Commission had stated at paragraph 63:
“… the concept of ‘home’ within the meaning of Article 8 is not limited to those which are lawfully occupied or which have been lawfully established. ‘Home’ is an autonomous concept which does not depend on classification under domestic law. Whether or not a particular habitation constitutes a home which attracts the protection of Article 8(1) will depend on the factual circumstances, namely, the existence of sufficient and continuous links.”
- Clearly the present cases are not concerned with any issues of legal or equitable interest. But the approach taken in Buckley, and approved as a matter of domestic human rights law in Qazi, goes some distance to support my view that there is prima facie a violation of Article 8(1) in these cases. “Home” is an autonomous concept for the purpose of ECHR, and does not depend on any legal status as owner. Thus in these cases, the premises in Sheffield and Sunderland were without question the women’s homes. Since the effect of the possession orders would be to throw them out, I think it inescapable that those orders amounted to an interference with the appellants’ right of respect of their homes. I have said that the case is all about Article 8; more precisely, it is all about Article 8(2).
- Before proceeding to the issues arising under Article 8(2), I should make it clear that I entertain what is perhaps a deeper reason for my view that the case cannot be concluded by a judgment that there is no violation of Article 8(1). It concerns the relationship between the two paragraphs of Article 8. I have held that eviction of these appellants would constitute a prima facie violation of their right to respect for their homes. But this conclusion is not simply an instance of that everyday judicial process, the application of a statute’s correct construction (here, Article 8(1)) to a particular set of facts. Rather it has a purposive quality. The court has to arrive at a judicial choice between two possibilities, a choice which transcends the business of finding out what the legislation’s words mean. The first choice (accepting Mr Underwood’s submission) would entail a judgment that the Convention requirement was met at the Article 8(1) stage: on balance, taking into account all the factors which I have listed in paragraph 23, there was no want of respect for the appellants’ homes. The second choice (accepting a prima facie violation of Article 8(1)), which I prefer, entails a judgment that the more rigorous and specific standards set out in Article 8(2) have to be met if the court is to hold that the evictions are compatible with the appellants’ Convention rights. The Convention is, as it were, much more remotely engaged in the fabric of our domestic law if the first, rather than the second, choice is taken. Part of the court’s task is to decide how close that engagement should be in the context in hand. Thus I do not eschew the first choice merely because I take the view that the second more naturally reflects the ordinary sense of the words used in Article 8(1). I consider as a matter of substance that the vindication and fulfilment of the Convention rights, for which purpose HRA was enacted, require that the domestic law procedures involved in these appeals should be subjected to scrutiny for conformity with the Article 8(2) standards. Such a process is demanded by the fullness of our municipal law of human rights.
- These conclusions, however, by no means dictate the reach of what Article 8(2) requires in the context of these appeals. Upon my view of the case it will be clear that those factors in the legislation and its effects emphasised by Mr Underwood, which I have set out in paragraph 23, bite if at all – sharply or otherwise – at the Article 8(2) stage. Indeed Mr Underwood’s submission on 8(2), relying again on those factors, replicates his argument on 8(1). He says that the interference with the appellants’ Article 8(1) rights constituted by the process leading to their eviction from their homes is justified within Article 8(2) upon its being shown that (a) the giving of the notices to quit and the issue of possession proceedings complied with conventional public law standards enshrined in the Wednesbury principle, and (b) all formal and procedural requirements were met. In short, he says that in this particular context Article 8(2) demands no more for the validation of the eviction process than do the ordinary domestic law rules. My conclusion that Article 8(2) has to be considered does not of itself contradict that position. It merely requires that Mr Underwood demonstrate the aptness of such modest, or remote, standards of judicial supervision against the Article 8(2) benchmarks.
- Mr Luba straightforwardly submits that the respondents are obliged to show that the appellant’s eviction in each case was on its particular facts necessary and proportionate to the aim in view, that is (presumably) the fair and reasonable management of the council’s housing stock under s.21(1) of the 1985 Act and in particular the proper administration of their duties to homeless persons under Housing Act 1996. He referred to Chapman (2001) 10 BHRC 48 (decided in Strasbourg), Gallagher 33 HLR 810 (Court of Appeal), Lambeth Borough Council 33 HLR 636 (Court of Appeal), and South Bucks DC v Porter (12 October 2001, Court of Appeal). Chapman concerned a gipsy who had bought a piece of land and moved her mobile home onto it. The district council refused planning permission for use of the mobile home there, and served enforcement notices. Gallagher concerned a secure tenant against whom the landlord sought possession on grounds set out in Schedule 2 to the 1985 Act. Lambeth was another secure tenant case. South Bucks was another gipsy case, and dealt specifically with the approach to be taken by the court when called on to adjudicate upon a local planning authority’s decision to seek an injunction against the gipsy in question under s.187B of the Town and Country Planning Act 1990.
- In each of these cases the court’s approach was to the effect that a specific judgment had to be arrived at, on the facts of the particular case, upon the question whether the eviction or removal of the appellant or applicant was objectively justified. In Chapman the court said at paragraph 104:
“The evaluation of the suitability of alternative accommodation will involve a consideration of, on the one hand, the particular needs of the person concerned – his or her family requirements and financial resources – and, on the other hand, the rights of the local community to environmental protection. This is a task in respect of which it is appropriate to give a wide margin of appreciation to national authorities, who are evidently better placed to make the requisite assessment.”
- In my judgment it is important to notice that the regimes of secure tenancies and of planning control (engaged in the gipsy cases), require the court to adjudicate upon the specific merits or otherwise of coercive action in the individual case; the court possesses a discretion, or at any rate enjoys a margin of judgment, as to what order should be made. Since 2 October 2000 the bite of Article 8(2) has been a potential or actual function of the court’s exercise of its discretion. It follows that in such cases the court now has to make a decision as to whether on the particular facts the authority’s actions are necessary or proportionate to the statutory aim in view. Accordingly it is with respect no surprise to see our domestic courts engaged in the administration of the Convention rights by reference to the specifics of the individual case, in the context of these discretionary powers. That is what Mr Luba says should have been done here.
- But not all statutory regimes are like that. Some give the court no discretion, but require an order to be made against the tenant or occupant upon certain conditions being satisfied. In Lambeth Sedley LJ said this at paragraph 32:
“In situations where the law affords an unqualified right to possession on proof of entitlement, it may be that Article 8.2 is met, but that is not the present class of case…”
Donoghue (2001) 33 HLR 73 was such a case. This court had to consider the impact of Article 8 upon the application of s.21(4) of the Housing Act 1988. That requires (the verb is “shall”) the court to make an order for possession of premises let under an assured shorthold tenancy if it is satisfied that a notice complying with certain conditions has been given by the landlord to the tenant. Lord Woolf CJ, giving the judgment of the court, said this at paragraph 69:
“… 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 the decision is more appropriate for Parliament than the courts and the HRA 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.”
- McLellan was also a case dealing with a state of affairs in which the court is obliged to make a possession order upon certain conditions being satisfied. As I have said, it was concerned with introductory tenancies. These were introduced by Housing Act 1996. In reality they are a form of probationary tenancy. The local authority may serve a notice on the introductory tenant indicating its intention to seek a possession order and giving reasons. The tenant is then entitled to a review of the decision to evict him. If on review the original decision is upheld the authority may commence proceedings for possession, and by s.127(2) the court must make an order for possession unless the authority has failed to comply with the requirements of s.128, which I need not cite.
- A large portion of the discussion in McLellan was concerned with the applicability of Article 6, and I need not travel back into that. But the court had to consider Article 8. At paragraph 47 Waller LJ stated that “… it is very much for Parliament to make the relevant judgments in this area”. Then at paragraph 64:
“If following the review the council decide to continue with the possession proceedings, they again must give their reasons. The application for possession then comes before the County Court. If there is a challenge to the reasons given and/or if the tenant asserts that the exceptions in Article 8(2) do not apply in the particular case, and the judge thinks that arguable, the judge will adjourn to allow an application to be made for judicial review. Should the decision of the review panel be found to have been reached without proper evidential basis or upon a view of the facts which could not reasonably be entertained or on the basis of a material error of fact, then that would be a ground for review in the High Court… In addition, if the judge thought that although the decision to evict was not in breach of Article 8 the pace of the eviction which was taking place was out of proportion and an infringement of the tenant’s human rights, he could use section 89 and grant an extension of time, albeit for a limited period.”
Waller LJ concluded at paragraph 67:
“In my view therefore the introductory tenancy scheme is not as such incompatible with Article 8, and there is no reason to think that individuals’ rights will be infringed without remedy from the courts.”
- It is to be noted that in paragraph 64 Waller LJ seems to have contemplated that the application of conventional grounds of review, along Wednesbury lines, was sufficient in the context of the introductory tenancy regime to make good the Article 8(2) guarantees. In truth, as it seems to me, Donoghue and McLellan march together. They offer strong support for the view that where Parliament has established, in the context of a particular sector in the public housing field, a scheme for the creation and distribution of housing authorities’ duties such that the authority is entitled (on certain conditions being met) to demand possession of let property from a tenant, Article 8(2) exonerates the authority of any liability under Article 8(1) arising from the tenant’s eviction if it has acted fairly and reasonably in conformity with the scheme.
- But Mr Luba submits that these present appeals are different. He says that in these cases the judges were not bound by Act of Parliament to order possession; although the landlord (having given proper notice to quit) was entitled to possession at common law, there was nothing to prevent the judge from holding his hand if the tenants’ Convention rights so required, and indeed in that case he was obliged by force of s.6 HRA to do so. Accordingly if on the particular facts, which on Mr Luba’s case he was of course required to investigate, he found that there was no Article 8(2) justification for the tenants’ eviction, the judge would have to refuse an order for possession.
- 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 HRA. (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 whether 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 Housing Act 1996 for the assistance of homeless persons. In my view (and as Mr Underwood submitted – see paragraph 23(iv) above) Parliament clearly enacted s.193 and paragraph 4 to Schedule 1 of the 1985 Act upon the premise that while a tenant was housed qua her position as a homeless person, she enjoyed no security. The authority might decide, within the two-year period (s.193(3)), to treat her as a mainstream council tenant under Part VI; and if in that capacity she was to remain in the property already occupied by her as a homeless person, the council would no doubt notify her under paragraph 4 of Schedule I to the 1985 Act. Indeed it seems to me that the purpose of the provision for notification in that paragraph is to allow for just such a state of affairs. But so long as she remains housed as a homeless person, the policy of the scheme is to allow the council to obtain her eviction upon service of a good notice to quit.
- For these reasons I regard this case as closer to Donoghue and McLellan than to Chapman, Gallagher, and the other authorities relied on by Mr Luba. Despite his protestations I consider, for reasons I have given, that his argument amounts in truth to a “macro” assault on the mechanics of the statutory scheme for protection of homeless persons.
- Even so, these considerations do not definitively establish that Article 8(2) requires in these cases no more than Mr Underwood has submitted it requires. However, it seems to me difficult to identify any middle way between on the one hand a rule which imposes no more than the discipline of Wednesbury together with compliance with all applicable procedures and formalities, and on the other the full-blown panoply of a rigorous examination by the county court judge in every case to ascertain whether on the particular facts the tenant’s eviction would be disproportionate to the council’s aim in view.
- 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  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 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 Housing Act 1996; and in my judgment, not 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.
- I reach this conclusion without regret, because it seems to me to be in accordance with principle. Parliament might enact a provision, even a whole scheme, which would be repugnant to the Convention; and if that were done it would of course be the court’s duty to say so. The measures contained in HRA dealing with declarations of incompatibility patently demonstrate Parliament’s own foresight of the possibility. But one would expect such clashes between the policy of main legislation and the Convention rights to be exceptional, not least for the good reason that distribution of the Convention rights has to go hand-in-hand with deference to the democratic legislature. A democratic system of government is a premise of all the Convention’s philosophy, underlined in the multiple references to what is “necessary in a democratic society”, a phrase which not only invokes the claims of proportionality, but also calls for respect for the elected arm of the State.
- There is now a good deal of modern authority to the effect that the intensity of judicial review varies with the subject-matter (see for example Daly, per Lord Steyn at paragraph 28 and Lord Cooke of Thorndon at paragraph 32). And it is trite (yet vital) that the greater the proposed interference with a fundamental right, the more the court will require by way of objective justification if the interference is to survive judicial scrutiny (for a pre-HRA example, see Ex p Smith  QB 517). Indeed we have reached the point, and did so before incorporation of ECHR, where if Parliament is to legislate so as to deny or frustrate what the law recognises as a fundamental or constitutional right, the courts will look for specific provision or necessary implication to that effect: Simms  3 WLR 328 per Lord Hoffmann at 341. But in all this odyssey of jurisprudence we do not lose sight of the fact that the courts are not primary decision-makers in areas such as housing policy. Strasbourg confers a wide “margin of appreciation” in such matters (see, in addition to Chapman, Mellacher 12 EHRR 391 paragraph 45). “Margin of appreciation” is, of course, a concept apt only to reflect the necessary distance from which an international tribunal must view the affairs of a nation State subject to its jurisdiction. But our own courts will give a margin of discretion to elected decision-makers, all the more so if primary legislation is under scrutiny.
- For all these reasons I would accept the thrust of Mr Underwood’s submissions on Article 8(2). There are two qualifications. The first is that I would not wish to say that the court’s scrutiny of a housing authority’s taking steps to obtain possession of accommodation let under s.193 of Housing Act 1996 is strictly limited to a Wednesbury approach (together with the need to be satisfied as to compliance with the private law requirements of form and procedure). Here I would merely refer to what I have already said in paragraph 40.
- 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 where 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 action. That, he said, stands in stark contrast to the position in Wandsworth Borough Council v Winder  AC 461, where the defendant/tenant’s public law point, if good, afforded a defence to the council’s private law claim for possession. He pointed to authority to the effect that a public law argument raised by way of defence to a claim for possession of a non-secure tenancy will be struck out unless, as in Winder, it actually affords a defence to the claim: Hackney v Lambourne 25 HLR 172.
- In my judgment this argument simply ignores the effect of the HRA. The effect of ss.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.
- There remain Mr Luba’s arguments on Article 1 of the First Protocol to ECHR, and Art 14 ECHR. He will forgive me if I deal with them peremptorily. First, there is no interference with the appellants’ property rights. They took the tenancies on terms including the landlord’s right to recover possession on service of a good notice to quit. Accordingly, when such a right is activated, the tenant is deprived of nothing which he was entitled to keep. As for Article 14, there is simply no discrimination here between like cases.
47. I would dismiss these appeals.
Lord Justice Kay:
- I agree.
Lord Justice Thorpe:
- 1 also agree.
Order: Appeal dismissed with costs; application for leave to appeal to HOL refused; Counsel to submit minute of order.
(Order does not form part of the approved judgment)
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