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Cite as: [2008] ECHR 1193

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17 October 2008

FOURTH SECTION

Application no. 37341/06
by Gavin KAY and Others
against the United Kingdom
lodged on 7 September 2006

STATEMENT OF FACTS

THE FACTS

The applicants, Mr Gavin Kay, born in 1951, Mr Peter Armstrong, born in 1959, Mr Ian Ballantine, born in 1946, Ms Cherry Barnett, born in 1965, Mr Ian Constantine, born in 1962, Mr Christopher Cole, born in 1951, Mr Thomas Greenhalgh, born in 1956, and Mr Martin Breschinky, born in 1960, are British nationals who live in London. Mr William Gorman, born in 1951, is an Irish national and also lives in London. They are represented before the Court by Thomas & Co., a firm of solicitors based in London.

A. The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

Background facts

The London Borough of Lambeth (“Lambeth”), owned a number of properties which were unsuitable for normal housing use. The properties formed part of the “short life” property of Lambeth, meaning that they were scheduled for demolition, redevelopment or works. Following aggressive squatting, which exacerbated the poor condition of the properties, and an increase in responsibilities on local housing authorities to provide shelter for homeless people, Lambeth began to consider a scheme under which housing associations would take over short life property and find and manage tenants until the property was required by Lambeth for demolition or redevelopment. In around 1977, Lambeth began informally licensing short life property to the London and Quadrant Housing Trust (“LQHT”), a charitable housing trust, in order that the latter could provide temporary accommodation for homeless people to whom Lambeth owed a statutory duty to arrange accommodation. However, some of the short life property could not be made suitable for use by homeless families and so, in a separate arrangement in 1979, Lambeth began to pass properties to LQHT and other bodies to use as housing for those to whom no statutory duty was owed and who would not generally be allocated housing by Lambeth. This was called the “singles scheme”. The applicants were all provided with housing under the singles scheme.

Until 1986, LQHT had an informal arrangement with Lambeth which covered the properties occupied by the applicants. This arrangement was replaced by a licence in 1986, reflecting the previous arrangement and terminable on three months' notice. In 1995, the licence arrangement was replaced by individual ten-year leases of each property granted to LQHT by Lambeth. The leases were subject to a break clause allowing either party to terminate the leases early on just over six months' notice. One purpose of the grant of the individual head leases was to allow LQHT to replace its licences to the applicants with assured shorthold tenancies, which would prevent them from acquiring security of tenure under the Housing Act 1985 (“the 1985 Act”). In fact, few of the applicants agreed to enter into assured shorthold tenancies with LQHT.

In 1999, Lambeth gave notice to terminate the head leases to LQHT. In November 1999, LQHT advised the applicants that the head leases had been terminated.

Domestic proceedings

In August 2000, Lambeth brought summary possession proceedings against all of the applicants except Mr Gorman. The applicants defended the proceedings on the basis that they were secure tenants of Lambeth. In August 2000, Mr Gorman brought an action against Lambeth for a declaration making the same claim. Lambeth sought an order for possession by way of counterclaim in Mr Gorman's proceedings.

The applicants argued that they were tenants of Lambeth and had secure tenancies under Part IV of the 1985 Act. They argued in the alternative that an order for possession against them would breach their right to respect for their homes under Article 8 of the Convention. Lambeth argued that it was not bound by tenancies created by LQHT and applied to strike out the applicants' Article 8 defence on the grounds that it showed no reasonable ground for defending the claim.

On 13 December 2002, the judge ruled that the applicants were not tenants of Lambeth and therefore had no security of tenure under Part IV of the Housing Act 1985. On 19 December 2003, following the July 2003 decision of the House of Lords in London Borough of Harrow v. Qazi [2003] UKHL 43, the judge struck out the applicants' alternative defence based on Article 8. The applicants' appeal against the two rulings was dismissed by the Court of Appeal on 20 July 2004.

The House of Lords granted leave to appeal on 22 June 2005. The Government intervened in the case in support of the applicants' Article 8 argument. On 8 March 2006, the House of Lords sitting as a committee of seven judges dismissed the appeal (see further below). On 28 April 2006, the County Court made possession orders against each of the applicants.

Relevant domestic law and practice

Security of tenure

The law regarding security of tenure is set out in the Court's judgment in McCann v. the United Kingdom, no. 19009/04, 13 May 2008.

The House of Lords judgment in Qazi

The House of Lords judgment in Qazi is described in detail in the Court judgment in McCann v. the United Kingdom, no. 19009/04, § 22-25, 13 May 2008. In that case, the House of Lords unanimously found that the property continued to be Mr Qazi's home notwithstanding the fact that the tenancy had come to an end and so Article 8 was engaged. However, the majority (Lords Hope of Craighead, Millett and Scott of Foscote) held that Article 8 could not be relied upon to defeat the local authority's proprietary or contractual right to possession. The dissenting minority (Lords Bingham of Cornhill and Steyn) considered that where there was a proposed interference with a person's right to respect for his home, the question of justification, if raised, did fall to be considered and should, in the instant case, be remitted to the County Court.

The House of Lords judgment in Kay

In the applicants' case of Kay v. Lambeth Borough Council; Price v. Leeds County Council [2006] UKHL 10, the House of Lords revisited Qazi following the Court's judgments in Connors v. the United Kingdom, no. 66746/01, 27 May 2004 and Blečič v. Croatia, no. 59532/00, 29 July 2004 (the latter judgment was subsequently referred to the Grand Chamber which found, on 8 March 2006, that since the case fell outside the Court's temporal jurisdiction, it was unable to take cognisance of the merits of the case).

The majority (Lords Hope, Scott of Foscote and Brown of Eaton under Heywood and Baroness Hale) held that the judgment in Connors was not incompatible with the view of the majority in Qazi and that a defence in possession proceedings which does not challenge the law under which the possession order is sought but is based only on the occupier's personal circumstances should be struck out. At paragraph 110, Lord Hope set out the test to be applied:

“ ... Where domestic law provides for personal circumstances to be taken into account, as in a case where the statutory test is whether it would be reasonable to make a possession order, then a fair opportunity must be given for the arguments in favour of the occupier to be presented. 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 judgment 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 in the exercise of its jurisdiction under the Human Rights Act 1998 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 do so under section 3, in a way that is compatible with article 8, 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, he should be permitted to do this provided again that the point is seriously arguable ...”

The minority (Lords Bingham of Cornhill, Nicholls of Birkenhead and Walker of Gestingthorpe) considered that occupiers should be able to plead Article 8 as a defence in possession proceedings, although such a defence would only be successful in highly exceptional cases. Lord Bingham described the minority approach as follows:

“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 fullblown 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 [of the Human Rights Act 1998] the judge should consider whether it may be appropriate to refer the proceedings to the High Court”.

The House of Lords judgment in Doherty

In 2008, the House of Lords handed down its decision in Doherty v. Birmingham City Council [2008] UKHL 57 shortly after the Court's judgment in McCann v. the United Kingdom, no. 19009/04, 13 May 2008. The House affirmed Kay and sought to clarify the position set out in that judgment, in light of the Court's decision in McCann. Lord Hope provided, in particular, the following clarifications of the “gateways” available for defendants to challenge possession orders, as explained in Kay:

“Gateway (b) then asserts that in possession cases brought by a public authority a defence which takes the form of a challenge to its decision to seek possession may be available. The court is not bound to make the order if the decision to seek it can be challenged on the ground that it was an improper exercise of the respondent's powers. In this respect the two routes, or “gateways", may be said to work together to address the incompatibility due to the lack of a procedural safeguard, which is the fundamental point that is at issue in this case. Gateway (a) addresses the question whether the court can read and give effect to the statutes in a way that is compatible with article 8. If it cannot do this, 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. The fact that it is available as a defence seems to me to strengthen the argument, should it be needed, that it also provides him with the protection which he seeks against an infringement of his Convention right ...

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 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 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”.

Lord Scott considered the minority view in Kay, as set out by Lord Bingham, and compared it to Lord Hope's test in Kay, concluding that:

“...The only proposition which is in any respect inconsistent with the majority opinions is proposition 3(b) and the inconsistency there is slight though important. Proposition 3(a) covers the same ground as Lord Hope's paragraph 110 gateway (a). But proposition 3(b) attributes to the occupier's personal circumstances a central importance that the majority opinions did not accept. 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 the 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.”

He disagreed with a passage in the decision of the Court of Appeal in the case under consideration, noting that:

“...the sentence “Under gateway (b) the council's action was open to challenge on conventional judicial review grounds, but not on the grounds that it was contrary to Article 8” suggests a disharmony between “conventional judicial review grounds” on the one hand and Article 8 on the other hand that I do not accept”.

In an addendum prepared following the release of the Court's judgment in McCann, Lord Scott emphasised that:

“...Local authorities, being public authorities, are obliged by section 6(1) of the Human Rights Act 1998 to act in accordance with the Convention rights incorporated by the Act into domestic law. They are obliged when deciding to terminate tenancies and recover possession of residential properties to act consistently with article 8. If a decision, for example to serve a notice to quit, is inconsistent with the article 8 rights of the person on whom it is served the decision would be unlawful and the notice to quit devoid of effect. Lord Hope's paragraph 110 establishes that a point of that sort can be raised as a defence to the possession proceedings. Such a defence would, if raised, be dealt with by a county court judge as part of the possession proceedings ...

An article 8 defence requires the judge to review the lawfulness of the local authority's decision 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 ...”

Lords Walker and Mance both drew attention to the fact that the majority in Kay had drawn an important distinction between human rights and traditional judicial review challenges. Lord Walker noted that:

“...As one of the minority in Kay, I must accept the decision of the majority, which distinguishes between grounds of judicial review which are based on the HRA [Human Rights Act] and grounds (“common law” or “conventional” grounds) which are not based on the HRA. The minority accepted the view of Lord Bingham of Cornhill ... that article 8 might, highly exceptionally, provide a tenant or licensee with additional protection. Lord Hope, in the leading speech for the majority, disagreed (para 110). So did Lord Scott (para 172), Baroness Hale (paras 189-190) and (most emphatically) Lord Brown (paras 207-208).

... I think that I may properly express unease and indeed incomprehension at the suggestion, which is at least implicit in this part of the decision, that HRA grounds and traditional judicial review grounds can always be separately identified.”

Lord Mance observed 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 increasingly be by ideas of fundamental rights ...

The difference in approach between the grounds of conventional or domestic judicial review and review for compatibility with Human Rights Convention rights should not however be exaggerated and can be seen to have narrowed, with “the 'Wednesbury' test ... moving closer to proportionality [so that] in some cases it is not possible to see any daylight between the two tests” (ABCIFER, para. 34, citing an extra-judicial lecture by Lord Hoffmann) ... Even so, as the subsequent history of ex p.Smith demonstrates, the result may not always achieve the degree of protection for Convention rights which the Strasbourg Court requires: Smith and Grady v. United Kingdom (1999) 29 EHRR 493. So there remains room in another case to reconsider how far conventional or domestic judicial review and Convention review can be further assimilated, and in particular whether proportionality has a role in conventional judicial review. This was not, however, argued on the present appeal, and, in common I understand with the majority of your Lordships, I do not consider that it is appropriate to embark on such a review on this appeal.

... 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 basic 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”.

COMPLAINT

The applicants complain under Article 8 of the Convention that they were prevented from challenging the possession orders on the ground that they violated their rights under Article 8 of the Convention.

QUESTION TO THE PARTIES

Did the applicants have the opportunity to have the proportionality of their evictions determined by an independent tribunal in light of the relevant principles under Article 8 (McCann v. the United Kingdom, no. 19009/04, 13 May 2008)?