HOUSING LAW PRACTITIONERS ASSOCIATION
Meeting 21st January 2009
Housing Law and Human rights
Introduction
1The words of JanLuba QC
The Issue
2Since the HRA 1998 came into force in October 2000, the question has been whether breach of Article 8 ECHR provides an additional defence to those provided in domestic law in possession cases in particular enabling the courts to find the relevant facts and make a decision as to whether it is proportional to make a possession order.
Administrative Law Defences
3 The most relevant cases are as follows:-
Harrow LBC v Qazi [2004] 1 AC 983 (HL)
Connors v UK [2004} 40 EHRR 189 (ECtHR)
Kay v Lambeth/Leeds CC v Price 2006 2 AC 465 (HL)
McCann v the United Kingdom [2008] LGR 474 (EctHR)
Doherty v Birmingham CC [2008] 3WLR 636
3The text of Article 8 of the European Convention on Human Rights and relevant case – law is set out at the end of these Notes(i)
The story so far (summary)
4 Qazi was regarded as finding that Article 8 added nothing to the existing
contractual and statutory rights in domestic law.
5 Following Connors, a local authority gypsy site case, the House of Lords was asked to reconsider Qazi, as the European Court had held that summary eviction was incompatible in the absence of a system with an independent fact finder and decision maker in Kay (residential property) and Price (gypsies occupying a recreation ground). Seven law lords sat onKay.
6In Kay/Price,the House of Lords held that Article 8 was met by (1) a “defence “ that the law relied upon by the public authority Claimant was incompatible with Article 8 and (2) a “public law “ defence that the decision to recover possession was unlawful on administrative law grounds which could be dealt with by the court hearing the possession proceedings eg the County Court)
Kay and Doherty-Compare and Contrast
What Kay said
7 Putting the judgements together in Kaycomes to this :
-failure on the part of a public authority to comply with Article 8 (ECHR) may provide a defence to summary possession proceedings
-it will do so only exceptionally in cases in which domestic law provides for an unqualified right to possession
-it is for the defendant to raise the issue. Once raised it can be dealt with in the county court unless an issue of statutory incompatibility arises in which case that can only be dealt with by the High Court ( s 4 of the 1998 Act)
-arguably, the exceptional cases were “ where the law which enables the court to make the possession order is incompatible with Article 8” and “if the defendant wishes to challenge the decision of a public authority to recover possession as an improper exercise of its powers at common law on the ground that it was a decision that no reasonable person would consider justifiable, he should be permitted to do so provided again that the point is seriously arguable (Wandsworth LBC v Winder [1985]AC 461) (para 110 Lord Hope) –the public law defence
-a defence based solely on personal circumstances should be struck out
-UK courts could not apply ECtHR decisions directly. They were bound by the rulings of the House of Lords
( Refer to paras 29-30, 36-39, 40-45 Judgement of Lord Bingham –
-paras 53, 54, 55, 56 and 59 Judgement of Lord Nicholls
-paras 108-110 and 112-113 Lord Hope)
The Public law Defence
8 It is expressed by Lord Hope in Kay v Lambeth/Leeds CC v Price @ para 110 (b) “But if the requirements of the law have been established and the right to recover possession is unqualified, the only situations in which it would be open to the Court to refrain from proceeding to summary judgement and making the possession order are these
(a)“ if a seriously arguable point is raised that the law which enables the court to make the possession order is incompatible with Article 8, the county court should deal with the argument in one or other of two ways (i) by giving effect to the law, so far as it is possible for it to do under s 3 [Human Rights Act 1998 – interpreting the law to make it compatible), or (ii) by adjourning the proceedings to enable the compatibility issue to be dealt with in the High Court;
(b)if the defendant wishes to challenge the decision of a public authority to recover possession as an improper exercise of its powers at common law on the ground that it was a decision that no reasonable person would consider justifiable (my italics) , he should be permitted to do so provided again that the point is seriously arguable [Wandsworth LBC v Winder 1985 AC 461]” [para 110].
What Doherty said
8In Doherty ( eviction of gypsy family from a local authority site case), the HoL (5 members) was invited to reconsider Kay/Price especially following McCann (iii)
(ECtHR ruling after argument had closed in Doherty-the argument before had been
whether the Council’s common law right to possession is incompatible with the
Convention when summary eviction was allowed without proof of reasons “liable
to be examined as to their merits by an independent tribunal”,
9 In Dohertythe HoL held :-
(1)the UK Court does not directly apply Article 8 by finding relevant facts to the proportionality issue, and then considering itself whether it is proportional to grant a possession order
(2)Article 8 is applied by determining whether the public authority has come to a Convention compatible decision as held in Kay/Price which should continue to be followed (para 56 Lord Hope, para 58 Lord Scott, although a different view is expressed by Lord Mance at para 162)
(3) Arguably the way in which the public law defence had been expressed in Kay/Price was too narrow (eg in appearing to exclude personal circumstances)
(4) When necessary the Court dealing with the public law defence could make relevant findings of fact
(5) if the court declines to make an order, that is until the Claimant can justify making one by meeting the public law test (para 57 Lord Hope)
From Doherty-the choice bits
10 “ For reasons that I shall seek to show, I believe that the answer to the article 8 issue in this case can be found in the formula that is set out in para 100. But I would be the first to acknowledge that the way the formula works in a case of this kind requires further explanation. To some extent too it needs to be modified “ (para 36 Lord Hope).
11 I think that in this situation it would be unduly formalistic to confine the review
[of the Council’s decision to recover possession] 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 which 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 security would not involve the judge substituting his own judgement 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. …” (para 55 Lord Hope paras 52-54 also refer)
12 “ But public authorities, and in particular local authorities, are in a different position. Their decision making powers are subject to the constraints of Wednesbury unreasonableness, and they must not act in a way that is incompatible with Convention rights (section 6 of the 1998 Act). But those public law constraints strike, in my opinion, the balance that article 8.2 requires (see the penultimate sentence of Lord Hope’s para 110).
(para 69 Lord Scott)
13 Lord Rodger and Lord Walker gave opinions following that of Lord Hope (and not differing from Lord Scott) @ paras 89,116 and 123. Lord Mance expressed preference for a “full Convention review “ of the local authority’s decision. Observing that “ 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 be increasingly be by ideas of fundamental rights (para 133). He continued “On this basis, in circumstances such as those in Kay, the only question under gateway (b) as expressed in Kay is whether the public authority’s decision can be challenged on domestic judicial review grounds, in particular as having been based on material misconceptions or improper considerations or as unreasonable, either in the Wednesbury sense or in a more relaxed sense which takes full account of the basis interest which any occupant has in his or her home. In other words, in circumstances such as those in Kay, a full Convention review is not, at least nominally, possible on the majority view taken in Kay” (para 136) “ It would, I think, be curious if common law discretions preserved by statute were not also to be exercised in accordance with Convention values (para 155) . I would hold that the case should be remitted … for the Council’s decision to issue a notice to quit to be reviewed on Convention as well as conventional or domestic or judicial review principles” (para 161)
14 “ The view of the majority, as expressed by Lord Hope in his gateway (b) was, as I have explained, that a local authority’s decision to recover possession would be open to challenge on public law grounds and that the challenge could be raised as a defence in the possession proceedings. The personal circumstances of the defendant might well be a factor to which, along with other factors relevant to its decision, a responsible and reasonable local authority would need to have regard. The question for the court would be whether the local authority’s decision to recover possession of the property in question was so unreasonable and disproportionate as to be unlawful” ( para 70 Lord Scott).
15 “ An article 8 defence requires the judge to review the lawfulness of the local authority’s decisions to recover possession of the property in question and in doing so, to review the factors that a responsible local authority ought to have taken into account in reaching its decision. The proportionality of the decision in all the circumstances of the case would be central to the review and if the local authority’s decision could be shown to be outside the range of reasonable decisions that a responsible local authority could take ,having regard both to the circumstances of the defendant as well as to all the other relevant circumstances, the decision would be held to be unlawful as a matter of public law” (para 85 Lord Scott)
Factual disputes
16Lord Scott considered the issue of resolving factual disputes arising in such cases in this way@ para 68 :-
“ Nor am I clear why normal judicial review procedure should not be adjusted so as to enable issues of fact to be judicially resolved where such resolution is necessary in order to enable the challenge to a decisions to be fairly disposed of……………the perceived procedural deficiencies are surely curable by a simple procedural adjustment enabling a challenge to the public authority’s decision to terminate the occupier’s tenancy or licence to be part of the occupier’s defence to the possession claim…., thus enabling any factual disputes that needed to be resolved to be dealt with in the ordinary way in the course of proceedings” There is a similar passage in Lord Hope’s judgement at para 57.
The problems
17 (1) What is the scope of the public law defence – is it confined to a “ decision to which no reasonable authority could come”?
(2)Is the public authority required to consider the personal circumstances of the occupiers?
(3)Is the public law defence available to those who have squatted ie were trespassers from the beginning of their occupation?
(4)Does the public authority have any duty of inquiry as to the existence of relevant factors?
(5)Is the defence available in respect of post issue decisions?
(6)Will the court’s fact finding role assist a defence?
Some answers
18 (1) The grounds of challenge referred to in Winder include all those set out in Associated Provincial Picture Houses v Wednesbury Corporation 1947 1 KB 223 @ 229 including failing to take account of relevant matters or taking into account irrelevant matters as within the phrase “ Wednesbury unreasonable” . This appears from Winder :- “ In addition to complying with express statutory conditions, the [council] was also bound to act reasonably in the Wednesbury sense: see Associated Provincial Picture Houses v Wednesbury Corporation” (Lord Fraser @ 505 G giving the opinions of their Lordships’ House and also @ 508 FG where he refers to entitlement to defend on the grounds set out in Cannock Chase DC v Kelly 1978 1 WLR 1, which includes all those grounds identified in Wednesbury-see@ 6GH Megaw LJ in Kelly)
(2) In KayLordHope had held that a defence based only on personal circumstances should be struck out (para 110-agreed by Lords Scott para 174 , and Brown para 212 and Baroness Hale-para 192). The above passages in Doherty, eg paras 70 and 85 of Lord Scott’s judgement and indeed para 55 of Lord Hope’s seems to make it plain that personal circumstances are a relevant factor, and could they be relevant even if they were the only factor in the Defendants’ favour.
(3) The only case involying squatters was Price. Lord Bingham held that a public law defence could only rarely succeed and did not in that case (paras 37-8 and 48 ). As all the law lords agreed the occupiers’ appeals should be dismissed despite the differences between them, not all the the judgements address the issue directly although Lord Scott was the most insistent that squatters could never have a defence (para 173). There would appear to be no reason in principle why not, however.
(4) Logically if the public authority is aware of a relevant factor (eg the prescence of a non statutory successor), then it should follow a line of inquiry.”A person entrusted with a discretion must..direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider" ( Wednesbury 1948 1 KB 223 @ 229 Lord Greene MR) and " the question for the court is, did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?" ( Tameside 1977 AC 1015 1065 B per Lord Diplock)
(5) The defence is to”the decision to recover possession”, obviously taken before the proceedings were begun. Since a cause of action crystallizes at that stage, can subsequent decisions to continue proceedings also be defended in the same claim or does there have to be a judicial review? Are there disadvantages to defending a subsequent decision?
(5) As in judicial review, it is unlikely that challenging the public authority’s evidence will assist the defence.
How will these Questions be answered?
19There are two cases pending in the Court of Appeal - Bedfordshire County Council v Taylor & Others CA Ref B8 /2008/1734 (permission granted 16/10/08, Tuckey, Rimer LJJ) which concerns former sub-tenants who have become trespassers as against the landowner, some having been in occupation since about 1993- and Mc Glynn v Welwyn & Hatfield DC which concerns a non secure tenancy and is floating over 18th-19th March 2009..
What do we do in the meantime?
20 Use “public law defences “ in appropriate cases
What sort of cases could the defence cover ?
21n addition to those cases like Kay, Price, Doherty, it is suggested all those cases where someone who had previously occupied lawfully has become a trespasser eg
(1)A terminated licence
- A “failed successor”
- Where a joint tenancy has been terminated by the other joint tenant’s notice to quit
- A non secure tenancy granted pursuant to homelessness obligation
And in possible addition
- An assured shorthold tenancy granted by a housing association which is a public authority
- Ground 8 possession claims brought by a public authority ( NB North British Housing Association v Matthews Vol 37 HLR [2005] 17 @ page 242 3 in which an “abuse of power “ defence was one of the examples given in which an adjournment might be granted in a Ground 8 case (para 12). However there the Court referred to an adjournment so that a judicial review application might be made- judgements before Kay and Doherty
- Introductory/ Demoted tenancies? (Logically the same could be said to apply to these tenancies. These statuses have been held compatible with Article 8- R (Mc Lellan v Bracknell ForestBC [2001] EWCA Civ 1510, 2002 33 HLR 86 and R (Gilroy) v Liverpool CC [2008] EWCA Civ 75, 2008 4 ALLER 127. However the review decisions taken can be challenged on administrative law grounds and again an adjournment granted to enable that to be done - Manchester City Council v Cochrane 1999 1 WLR 809 (CA).Applying Kay and Doherty, it would appear that should now be by defence in the County Court )
How would the Defence be put ?
22 Usually on the basis that the decision to recover possession was unreasonable/ disproportionate or failed to consider relevant matters as the greater harm to be caused to the occupier by the eviction than benefit to the authority by gaining possession, the lack of evidence as to what the land/house/flat was required to, as opposed to the hardship caused to the occupier, the personal circumstances of the occupier, faliling to apply a relevant Code or Policy, or misapplying .a relevant Code or Policy.
23In most housing cases the disproportionality defence would be met by the needs of others for that accommodation outweighing that of the occupier- but not always eg the failed successor who was sharing a one bedroom flat.
What is the status of the occupier if the defence succeeds
24He does not acquire a tenancy. He is someone who cannot be evicted until the public authority can justify its decision (para 57 Doherty).
Your Speaker’s experience so Far
25He has taken “post Doherty public law defence” points in two gypsy cases, one failed successor, one squatter case, one non secure tenancy case and in Taylor (above). Four have been resolved (the squatters case, the failed successor and the gypsy cases)
Re-Visiting MalazamHussain
26 As has been held , there is no liability on a landlord either for breach of covenant for quiet enjoyment or for nuisance or negligence for failing to control tenants causing nuisance to other tenants and neighbours ( MalazamHussain v Lancaster CC [2000 QB 1 CA]) unless the landlord has expressly or impliedly authorised that conduct (which it will be assumed not to have if there are terms against causing nuisance in the tenancy agreement - which is likely to be the case here).Subsequent petitions to the House of Lords and to the European Court of Human Rights were dismissed and so the case continues to state the domestic law.
27 However a claim under the Human Rights Act 1998 should be possible. The procedure for bringing a claim under the HRA is set out in section 7