European Court of Human Rights

FOURTH SECTION

Application no. 74946/10
by Alistair BROGAN and Lesley BROGAN
against the United Kingdom
lodged on 20 December 2010

STATEMENT OF FACTS

THE FACTS

The applicants, Mr Alistair Brogan and Ms Lesley Brogan, are British nationals who were born in 1964 and live in Doncaster.

A.  The circumstances of the case

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

On 16 August 2003 the applicants purchased Dove Cottage (“the property”), which became their main residence. Although the second applicant claims that she used some of her funds to purchase the property, it was registered in the first applicant’s sole name.

The first applicant purchased the property with the assistance of a mortgage in favour of GMAC-RFC. On 30 August 2006 he entered into a second mortgage with Kensington Mortgage Company Limited (“KMCL”). The total amount loaned was GBP 26,875.00. However, he fell into mortgage arrears in April 2008 and KMCL commenced possession proceedings in the County Court.

In the course of a neighbourhood dispute at the end of 2008 it was discovered that the first applicant lacked the capacity to manage his own affairs. Medical reports indicated that he had Asperger’s Syndrome and a schizophrenic illness. On 24 September 2008 a senior judge at the Court of Protection made an order authorising the first applicant’s solicitor to act as an Interim Deputy for Property and Affairs (“Interim Deputy”) to defend, inter alia, the possession proceedings on his behalf. The order authorised her to take control of his property and affairs and exercise the same power over them as a beneficial owner.

At a hearing on 6 October 2008, KMCL indicated to the court that the first applicant had made no payments on the mortgage since 11 April 2008. Consequently, the District Judge ordered that he give KMCL possession of the property before 3 November 2008.

The Office of the Public Guardian commissioned a Court of Protection Visitor to meet with the applicants and the Interim Deputy on 19 March 2009. The visitor noted (incorrectly) that all payments on the mortgage were up to date. However, he also noted that the situation of the applicants was “very difficult and unstable” and seemed “on the edge of crisis” as the second applicant was not well herself and might not be able to care much longer for the first applicant.

In mid-2009 the second applicant complained to the Office of the Public Guardian about the conduct of the Interim Deputy. In particular, she claimed that the Interim Deputy had failed to use funds of GBP 25,000 received following a successful neighbour dispute to discharge the mortgage arrears and that she had been off work sick for five weeks and was not dealing with her deputyship duties. KMCL also complained about the Interim Deputy’s conduct, both to the Office of the Public Guardian and to the Law Society. They claimed that they had discontinued possession proceedings after the Interim Deputy had verbally agreed a settlement with them but that she had subsequently reneged on that agreement by insisting, without foundation, that KMCL pay her costs.

The second applicant subsequently withdrew her complaints against the Interim Deputy unreservedly. In a report dated 18 July 2009 the Office of the Public Guardian found that there was a dispute between KMCL and the Interim Deputy which should be resolved between the parties. It also found that there had been a dispute between the Interim Deputy and her firm which resulted in her leaving the firm and working from home. Following a period of claimed ill-health, she had resumed activity in the affairs of the first applicant. The Office of the Public Guardian therefore closed its investigation.

On 16 December 2009 KMCL obtained a warrant for possession from the County Court.

On 25 January 2010 the Court of Protection ordered a report into the management and administration of the property and affairs of the first applicant by the Interim Deputy. The report was prepared by the Office of the Public Guardian and published on 21 April 2010. The report noted that on her appointment, the Interim Deputy had advised KMCL that there was sufficient money in the Brogan’s client account to pay their arrears. However, KMCL informed the Office of the Public Guardian that the Interim Deputy had “made no attempt to pay the outstanding arrears or to ensure that mortgage payments are going forward”. In fact, she had entered into a verbal agreement to pay the arrears but then reneged on the agreement leaving KMCL no alternative but to seek possession. It also became clear during the course of the investigation that there was another complaint against the Interim Deputy by a client for whom she was acting as a Receiver. The report concluded that the Interim Deputy was struggling with her general, day-to-day duties and that there was a worrying – and unexplained – disparity as to the disbursement of approximately GBP 27,000 received into her employer’s client account in September 2008. Although the Court of Protection Visitor’s Report stated that all payments were up to date and that the GBP 25,000 received in September 2008 had been used in paying the arrears of the mortgage, in mid-2009 those funds were still in the client account. The report concluded that the first applicant’s best interests had not been served by the Interim Deputy.

The Interim Deputy applied to the court to suspend the warrant for possession on the ground that it could not be enforced without the leave of the Court of Protection. On 21 May 2010 the application was dismissed and the Interim Deputy’s authority to act in those proceedings came to an end. The possession warrant was returned to the bailiff for a new eviction date to be set. An appeal against the decision of 21 May 2010 was dismissed on 28 May 2010.

On 1 June 2010 the applicants were evicted from the property.

On 4 June 2010 the Interim Deputy made a further application to set aside the first applicant’s credit agreement with KMCL on the ground, inter alia, that he did not have the mental capacity to enter into it in 2006. On the same date the second applicant applied to join the application on the ground that she had also been in occupation of the property, had an interest in the property and was left homeless after KMCL were granted possession. She wrote to the court, setting out details of the first applicant’s mental health problems and outlining her own health concerns (including severe spondalosis, sciatica, heart disease, angina and depression).

On 8 July 2010 the Court of Protection revoked the appointment of the Interim Deputy with immediate effect. However, she was appointed as his Deputy limited to the single issue of making an application on his behalf for public funding to make an application for judicial review of the decision of 28 May 2010. This appointment was to expire on 28 October 2010 unless extended by the Court.

On 14 July 2010 the District Judge dismissed the application to suspend the credit agreement and join the second applicant to the proceedings. The second applicant was ordered to pay KMCL’s costs of her application, which were assessed in the sum of GBP 5,765.06. Permission to appeal was refused.

The applicants, through the Interim Deputy, sought to appeal against the order of the District Judge. In particular, they submitted that there had been no consideration of their rights under Article 8 of the Convention.

On 30 November 2010 the Court of Protection gave the applicants’ daughter, Kate, authority to act as the first applicant’s litigation friend at the appeal hearing.

The appeal was heard on 3 December 2010. The judge found that the first applicant was not validly a party to the purported appeal as the Interim Deputy did not have authority to issue it. The second applicant and her representative were not able to attend the hearing owing to difficult weather conditions. Her appeal was dismissed as totally without merit and she was ordered to pay costs of GBP 4,863. The Interim Deputy was joined to the proceedings and was ordered personally to pay to KMCL costs in excess of GBP 10,000.

Following the eviction the first applicant spent ten days without his maintenance medication, which caused a temporary deterioration in his condition. The applicants initially lived with their youngest daughter in a van before all three moved to a tent in another daughter’s garden. During this period the first applicant attempted suicide on two separate occasions. The family later moved into a rental property.

B.  Relevant domestic law and practice

1.   Mental Capacity Act 2005

Section 16 permits the court to appoint a deputy to act on behalf of a person who lacks capacity in relation to matters concerning either their personal welfare or their property and affairs. However, the powers conferred on the deputy should be as limited in scope and duration as is reasonably practicable in the circumstances and the court may revoke the appointment of a deputy or vary the powers conferred on him if it is satisfied that he has behaved, is behaving, or is proposing to behave in a way that contravenes the authority conferred on him by the court or is not in the protected party’s best interests.

Pursuant to section 18, the deputy’s powers extend, inter alia, to the discharge of the protected person’s debts and obligations, whether legally enforceable or not.

Section 19(6) provides that the deputy is to be treated as the protected person’s agent in relation to anything done or decided by him within the scope of his appointment.

2.  Repossession proceedings

Possession claims are governed by Part 55 of the Civil Procedure Rules and Practice Direction 55A. With regard to land subject to a mortgage, the Practice Direction provides that at the hearing the claimant’s evidence should include the amount of any rent or mortgage arrears and interest on those arrears. These amounts should, if possible, be up to date to the date of the hearing (if necessary by specifying a daily rate of arrears and interest).

If relevant the defendant should give evidence of the amount of any outstanding social security or housing benefit payments relevant to rent or mortgage arrears and the status of any claims for social security or housing benefit about which a decision has not yet been made or any applications to appeal or review a social security or housing benefit decision where that appeal or review has not yet concluded.

COMPLAINT

The applicants complain under Article 3 of the Convention that the eviction and subsequent period of homelessness constituted inhuman and degrading treatment. They also complain under 6 § 1 of the Convention that they did not have the opportunity to have the proportionality of the eviction assessed before an independent and impartial tribunal. The applicants complain under Article 8 of the Convention that the eviction violated their right to respect for their family and private life, home and correspondence. They further submit that there was no procedure available to them which permitted them to challenge the eviction on the basis of their personal circumstances.

QUESTIONS TO THE PARTIES

Have the applicants exhausted domestic remedies in respect of their complaints under Articles 6 § 1 and 8 of the Convention? If so, have their complaints been brought within six months of the date of the final domestic decision?

Did the eviction of the applicants violate their right under Article 8 of the Convention to respect for their home?

Did the applicants have a fair hearing in the determination of the possession proceedings in accordance with Article 6 § 1 of the Convention?