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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Salford City Council v Mullen & Ors [2010] EWCA Civ 336 (30 March 2010) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2010/336.html Cite as: [2011] 1 All ER 119, [2010] 15 EG 95 (CS), [2010] HLR 35, [2010] EWCA Civ 336, [2010] BLGR 559, [2010] NPC 43 |
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(3) B5/2009/2054, (4) B5/2009/2615 and (5) B5/2009/1389 |
ON APPEAL FROM (1) THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION MANCHESTER DISTRICT REGISTRY
Mr Justice McCombe
9SF03930
(2) BRENTFORD COUNTY COURT
Deputy District Judge Shelton
BF03223
(3) LEEDS COUNTY COURT
His Honour Judge J Spencer QC
9LS51001
(4) IN BIRMINGHAM COUNTY COURT
District Judge Gailey
8BM72475
(5) IN MANCHESTER COUNTY COURT
His Honour Judge Raynor QC
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Strand, London, WC2A 2LL |
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B e f o r e :
Vice President of the Court of Appeal
LADY JUSTICE ARDEN
and
LORD JUSTICE PATTEN
____________________
(1) SALFORD CITY COUNCIL and MULLEN (2) MAYOR AND BURGESSES OF THE LONDON BOROUGH OF HOUNSLOW and POWELL (3) LEEDS CITY COUNCIL and HALL (4) BIRMINGHAM CITY COUNCIL and FRISBY (5) MANCHESTER CITY COUNCIL and MUSHIN THE SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT |
Respondent Appellant Respondent Appellant Respondent Appellant Respondent Appellant Appellant Respondent Intervener |
____________________
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Jan Luba QC and Paul Whatley (instructed by Glaisyers Solicitors) for the Appellant
Kelvin Rutledge (instructed by Corporate Services LB Hounslow) for the Respondent
Jan Luba QC and Kevin Gannon (instructed by Scully & Sowerbutts Solicitors) for the Appellant
Ashley Underwood QC and Helen Greatorex (instructed by Leeds City Council Legal Department) for the Respondent
Jan Luba QC and Adam Fullwood (instructed by Zermansky & Partners) for the Appellant
Jonathan Manning (instructed by Legal Services Birmingham City Council) for the Respondent
Jan Luba QC and Michael Singleton (instructed by Evans Derry Binion Solicitors) for the Appellant
Jan Luba QC and Adam Fullwood (instructed by Platt Halpern Solicitors) for the Respondent
Jon Holbrook
(instructed by City Solicitor, Manchester City Council) for the Appellant
Daniel Stilitz QC and Ben Hooper (instructed by Treasury Solicitors) for the Intervener
Hearing dates : 16th – 19th March 2010
____________________
Crown Copyright ©
Lord Justice Waller :
Introduction
Background
THE RELEVANT STATUTORY REGIMES
Secure tenancies
Homelessness (the Powell v. Hounslow and Manchester v. Mushin appeals)
The introductory tenancy regime (the Hall v. Leeds, Frisby v. Birmingham City Council and Mullen v. Salford City Council appeals)
"(1) The landlord may only bring an introductory tenancy to an end by obtaining—
(a) an order of the court for the possession of the dwelling-house, and
(b) the execution of the order.
(1A) In such a case, the tenancy ends when the order is executed.
(2) The court shall make an order of the kind mentioned in subsection (1)(a) unless the provisions of section 128 apply." (Emphasis added.)
"(1) The court shall not entertain proceedings for the possession of a dwelling-house let under an introductory tenancy unless the landlord has served on the tenant a notice of proceedings complying with this section.
...
(5) The court shall not entertain any proceedings for possession of the dwelling-house unless they are begun after the date specified in the notice of proceedings."
"(2) The notice shall state that the court will be asked to make an order for the possession of the dwelling-house.
(3) The notice shall set out the reasons for the landlord's decision to apply for such an order.
(4) The notice shall specify a date after which proceedings for the possession of the dwelling-house may be begun.
The date so specified must not be earlier than the date on which the tenancy could, apart from this Chapter, be brought to an end by notice to quit given by the landlord on the same date as the notice of proceedings.
...
(6) The notice shall inform the tenant of his right to request a review of the landlord's decision to seek an order for possession and of the time within which such a request must be made.
(7) The notice shall also inform the tenant that if he needs help or advice about the notice, and what to do about it, he should take it immediately to a Citizens' Advice Bureau, a housing aid centre, a law centre or a solicitor."
"A county court has jurisdiction to determine questions arising under this Chapter and to entertain proceedings brought under this Chapter and claims, for whatever amount, in connection with an introductory tenancy."
The demoted tenancy regime
"(1) The landlord may only bring a demoted tenancy to an end by obtaining—
(a) an order of the court for the possession of the dwelling-house, and
(b) the execution of the order.
(1A) In such a case, the tenancy ends when the order is executed.
(2) The court must make an order for possession unless it thinks that the procedure under sections 143E and 143F has not been followed." (Emphasis added.)
"(1) A county court has jurisdiction—
(a) to determine questions arising under this Chapter;
(b) to entertain proceedings brought under this Chapter;
(c) to determine claims (for whatever amount) in connection with a demoted tenancy."
THE CASES SUMMARISED
Powell v. Hounslow (homelessness accommodation)
Manchester v. Mushin (homelessness accommodation)
Hall v. Leeds (introductory tenancy)
Frisby v. Birmingham City Council (introductory tenancy)
Mullen v. Salford City Council (introductory tenancy)
ISSUES
Is a gateway (b) defence precluded in the county court in all cases?
Do the particular statutory schemes under consideration on these appeals exclude the taking of a public law defence in the County Court?
Homelessness
The introductory tenancy regime
"I am encouraged in this conclusion [i.e. that section 143D limits the court's function to determining whether the proper procedure has been followed] by the possible consequences of the county court having jurisdiction to conduct a judicial review of a decision on the review conducted under the statutory procedure. The county court does not have jurisdiction to quash that decision. If, therefore, it found that the decision was legally defective applying the Doherty test or on other domestic judicial review grounds (for example, because an irrelevant consideration had been taken into account), it might have no alternative but to dismiss the claim for possession. The result would be, by section 143B(4)(b), that the demoted tenancy became a secure tenancy, even if the landlord, given an opportunity to reconsider its decision (which it clearly could do if the original decision were quashed), would again decide to seek possession and could do so quite lawfully."
The same reasoning can be applied in the introductory tenancy context and indeed was by Sir John Knox in Cochrane at 820C-821A.
Does gateway (b) contemplate a full ECHR proportionality review?
"[52] … the speeches in Kay show that the route indicated by this gateway is limited to what is conveniently described as conventional judicial review …
[53] … it will be open to the defendant by way of a defence to argue under gateway (b) that the order should not be made unless the court is satisfied, upon reviewing the respondent's decision to seek a possession order on the grounds that it gave and bearing in mind that it was doing what the legislation authorised, that the decision to do this was in the Wednesbury sense not unreasonable. This route offers a procedural protection under the common law. If taken, it will enable the grounds on which the respondent based its decision to be scrutinised. It might, on the facts of this case, provide the appellant with an effective defence to the making of the possession order. …
[55] I think that in this situation it would be unduly formalistic to confine the review strictly to traditional Wednesbury grounds. The considerations that can be brought into account in this case are wider. An examination of the question whether the respondent's decision was reasonable, having regard to the aim it was pursuing and to the length of time that the appellant and his family have resided on the site, would be appropriate. But the requisite scrutiny would not involve the judge substituting his own judgment for that of the local authority. In my opinion the test of reasonableness should be, as I said in para 110 of Kay, whether the decision to recover possession was one which no reasonable person would consider justifiable."
"[133] ... Gateway (b), as expressed in paragraph 110 in Kay was, as I see it, phrased so as to exclude any direct application of the Convention rights or of the Strasbourg Court's test of proportionality, and to confine attention to common law grounds for judicial review, informed though they may increasingly be by ideas of fundamental rights …
[134] The general distinction which thus emerges is recognised and described in R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, per Lord Steyn, at para 27, and Lord Cooke of Thorndon, at para 32, recognising though regretting the distinction, and in R (Association of British Civilian Internees: Far East Region) v Secretary of State for Defence [2003] QB 1397, paras 32- 37, where Dyson LJ, giving the judgment of the Court of Appeal, said that any abandonment of the common law's Wednesbury unreasonableness test for a proportionality test was a step which could only be taken by this House."
" … I for my part regret that it has not been possible on this appeal to agree to modify gateway (b) in para 110 [of Kay] more generally, so as to allow express regard to be had to Human Rights Convention principles in relation to any defence raised against a public authority under the rule in Wandsworth London Borough v Winder …"
How wide is gateway (b) and how relevant is the particular statutory scheme, and any procedural (or other) rights that it affords occupiers?
"Since the amendment to the 1968 Act, I find it difficult to conceive of a case in which a public law defence would succeed …. It will only be in a truly exceptional case that it will even be seriously arguable that such a defence will succeed." (Emphasis added.)
That in our view reflects the approach of the House of Lords in Kay and Doherty and the importance of recognising that the assumption should be that Parliament has passed laws which are Article 8 compliant. Indeed so far as we are concerned we are bound by decisions of this court in McLellan and Smart that the introductory tenancy schemes and the Homelessness legislation are Article 8 and Article 6 compliant and it will thus only be in highly exceptional cases that any gateway (b) defence to possession proceedings could be established.
" 34. Under some statutory regimes, as where discretionary grounds are relied on to terminate a secure tenancy under the Housing Act 1985, the court may make an order for possession only where, other conditions for making such an order being met, the court thinks it reasonable to do so. This enables the court to take account of all circumstances which it judges to be relevant. If, in any case covered by such a regime, the statutory conditions are satisfied and the court does, on consideration of all the circumstances, think it reasonable to make a possession order, the court will in effect have undertaken the very assessment which article 8(2) requires. In such a situation article 8(2) adds nothing of substance to the protection which the occupier already enjoys."
35. Under some statutory regimes the court may be required to make an order for possession if certain prescribed conditions are met and there is no overriding requirement that the court considers it reasonable or just to make such an order. The statutory scheme is nonetheless likely to satisfy the article 8(2) requirement of proportionality if it is clear that the statutory scheme represents a democratic solution to the problems inherent in housing allocation. Thus in Poplar Housing and Regeneration Community Association Limited v Donoghue [2001] EWCA Civ 595, [2002] QB 48, the Court of Appeal found no breach of article 8(2) in the use of section 21(4) of the Housing Act 1988, as amended, to gain possession of an assured shorthold tenancy granted to a person who had been intentionally homeless, because (para 69) Parliament had intended to give preference to the needs of those dependent on social housing as a whole over those who, like the tenant, had been intentionally homeless. Similarly, in R (McLellan) v Bracknell Forest Borough Council [2001] EWCA Civ 1510, [2002] QB 1129, the Court of Appeal found no breach of article 8 where a housing authority determined the introductory tenancies of tenants whose rent was in arrears under section 127(2) of the Housing Act 1996, since (para 63) Parliament had decided that it was necessary in the interest of tenants generally and the local authorities to have a scheme whereby, during the first twelve months, tenants were on probation and could be evicted without long battles in the county court, there being (it was held) adequate procedural safeguards. The Court of Appeal took a similar approach when holding, in Sheffield City Council v Smart [2002] EWCA Civ 4, [2002] HLR 639, para 37, that Parliament clearly enacted the relevant statutory provisions upon the premise that while a tenant is housed as a homeless person he enjoys no security of tenure. See also Wandsworth London Borough Council v Michalak [2002] EWCA Civ 271, [2003] 1 WLR 617, paras 63, 78. Where a statutory scheme covers the case of an occupier, and conditions are prescribed for obtaining possession, and those conditions are met, it will only be in highly exceptional circumstances that the occupier will gain additional protection from article 8.
36. There are of course some cases (of which the present cases are examples) in which the relationship between public authority owner or landlord and individual tenant or occupier is not governed by any statutory scheme. But possession may be sought on expiry of the period for which the right to occupy was granted, or because the notice required by domestic property law to bring that term to an end has been given, or because one or more of the conditions on which the right to occupy was granted has been broken. It cannot be said that the relationship between the parties in such cases is the subject of a balance struck by Parliament, but it is not unrealistic to regard the general law as striking such a balance. The public authority owner or landlord has, broadly speaking, a right to manage and control its property within bounds set by statute. The occupier acquires a right, but only a limited right, to occupy. On due determination of that interest, a claim for possession must ordinarily succeed, since any indulgence to the occupier necessarily derogates from the property right of the public authority, whose rights are also entitled to respect. It is not therefore surprising that in P v United Kingdom (Application No 14751/89), 12 December 1990, and Ure v United Kingdom (Application No 28027/95), unreported, 27 November 1996, the occupiers' complaints were held to be inadmissible because the public authority's interference or assumed interference was held to be clearly justified. It would, again, require highly exceptional circumstances before article 8 would avail the occupiers. The peculiar facts and circumstances of Connors could fairly be regarded as crossing that high threshold, given the positive obligation to which reference is made in paragraph 24 above.
37. Rarely, if ever, could this test be satisfied where squatters occupy the land of a public authority which they do not and (unlike Connors) never have had any right to occupy, and the public authority acts timeously to evict them. The public look to public authorities to preserve their land for public purposes and to bring unlawful occupation to an end, with the environmental hazards it is likely to entail. Rules 55.5(2) and 55.6 of the Civil Procedure Rules provide for the summary removal of squatters. The rule in McPhail v Persons, Names Unknown [1973] Ch 447 must, in my opinion, be relaxed in order to comply with article 8, but it is very hard to imagine circumstances in which a court could properly give squatters of the kind described above anything more than a very brief respite.
38. I do not think it possible or desirable to attempt to define what facts or circumstances might rank as highly exceptional. The practical experience of county court judges is likely to prove the surest guide, provided always that the stringency of the test is borne in mind. They are well used to exercising their judgment under existing statutory schemes and will recognise a highly exceptional case when they see it. I do not, however, consider that problems and afflictions of a personal nature should avail the occupier where there are public services available to address and alleviate those problems, and if under the relevant social legislation the occupier is specifically disentitled from eligibility for relief it will be necessary to consider the democratic judgment reflected in that provision. Nor can article 8 avail a tenant, otherwise perhaps than for a very brief period, if he can be appropriately accommodated elsewhere (whether publicly or privately). Where, as notably in the case of gipsies, scarcity of land adversely affects many members of the class, an article 8(2) defence could only, I think, succeed if advanced by a member of the class who had grounds for complaint substantially stronger than members of the class in general.
39. The practical position, in future, in possession proceedings can be briefly summarised as follows. (1) It is not necessary for a local authority to plead or prove in every case that domestic law complies with article 8. Courts should proceed on the assumption that domestic law strikes a fair balance and is compatible with article 8. (2) If the court, following its usual procedures, is satisfied that the domestic law requirements for making a possession order have been met the court should make a possession order unless the occupier shows that, highly exceptionally, he has a seriously arguable case on one of two grounds. (3) The two grounds are: (a) that the law which requires the court to make a possession order despite the occupier's personal circumstances is Convention-incompatible; and (b) that, having regard to the occupier's personal circumstances, the local authority's exercise of its power to seek a possession order is an unlawful act within the meaning of section 6. (4) Deciding whether the defendant has a seriously arguable case on one or both of these grounds will not call for a full-blown trial. This question should be decided summarily, on the basis of an affidavit or of the defendant's defence, suitably particularised, or in whatever other summary way the court considers appropriate. The procedural aim of the court must be to decide this question as expeditiously as is consistent with the defendant having a fair opportunity to present his case on this question. (5) If the court considers the defence sought to be raised on one or both of these grounds is not seriously arguable the court should proceed to make a possession order. (6) Where a seriously arguable issue on one of these grounds is raised, the court should itself decide this issue, subject to this: where an issue arises on the application of section 3 the judge should consider whether it may be appropriate to refer the proceedings to the High Court."
" … under the introductory tenancy scheme it is not a requirement that the council should be satisfied that breaches of the tenancy agreement have in fact taken place. The right question under the scheme will be whether in the context of allegation and counter-allegation it was reasonable for the council to take a decision to proceed with termination of the introductory tenancy."
Can steps taken by a local authority to obtain a possession order once a notice to quit has been served be characterised as separate "decisions" amenable to public law review by the county courts under gateway (b)?
"[39] I would accept that the likely assumption of the majority in Kay was that the relevant decision that could be the subject of judicial review was the original decision to seek possession. Furthermore, Toulson L.J. was of the opinion in Doran that the court should not engage in a retrospective exercise by examining the facts as they are now found to be and asking whether the decision on those facts would have been lawful. [See [57]–[60]]. He was also of the view that the remission in Doherty was for the purpose of examining the facts known to the public authority when it made its original decision. I respectfully suggest that there is a difficulty with this approach having regard to the fact that in these cases the burden is on the occupier to raise the circumstances on which he relies and because the approach perhaps does not recognise the possibility that a public authority may make a series of decisions in the light of the facts as they appear. If one looks at it on the basis that, once the public authority knows facts that it has not known up until they are revealed, the public authority is bound to take a further decision that avoids the concept of an exercise in retrospectivity.
[40] An authority such as the council in the instant appeals may make a decision on the facts as known to it to send a letter seeking possession. Prima facie it has no obligation to find out what the true facts are and the burden is going to be on the occupier to demonstrate any grounds relied on as providing an art.8 defence. If the occupier informs the public authority of relevant circumstances, the public authority will have to take a further decision as to whether to commence proceedings. If no letter is received and the facts are only divulged just prior to the hearing, the public authority in reality has to take a further decision as to whether to proceed. Indeed if the revelation is only during the hearing, the council in deciding to continue to press for an order takes yet a further decision. I do not see why if any one of these decisions could be shown to be 'unreasonable' whatever that means ..., it could not be attacked.
[41] If that is an appropriate analysis, because the county court is seized of the matter, it will be able to see whether there is an arguable case that in deciding even with the revelation of further facts to continue to seek possession is unreasonable. ..."
CONCLUSIONS IN THE PARTICULAR APPEALS
Powell v Hounslow
Manchester v Mushin
Hall v Leeds
Frisby v Birmingham
Permission to appeal
Lord Justice Patten :
Manchester City Council v Mushin
"You have been the perpetrator of domestic violence against your wife. As such Manchester City Council has served you with a Notice to Quit your temporary accommodation at the above address, which was provided by the Homeless Families team.
All duties owed to you by Manchester City Council as a homeless person under Section 193 of the Housing Act 1996 (Part VII) have ceased. No further accommodation, temporary or permanent will be made available to you."
"Informed Mushin Mohamed, still living at Clacton Walk, that he must present at Mens DA for further accommodation as he can no longer stay in HFTA property as a single man.
Mushin agreed to present at Mens DA."
"Served Mushin with NTQ, to leave Clacton Walk by 27/12/07.
Phoned Mens DA who had seen Mushin when he presented on 21/11 and as a result informed Mushin that he must present with NTQ in hand to show that he is not making himself intentionally homeless.
Mushin agreed to do this."