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URL: http://www.bailii.org/eu/cases/ECHR/2011/808.html
Cite as: [2011] ECHR 808
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FOURTH SECTION
Application no.
40060/08
by Maria BUCKLAND
against the United Kingdom
lodged
on 12 August 2008
STATEMENT OF FACTS
THE FACTS
1. The applicant, Ms Maria Buckland, is a British national who was born in 1959 and lives in Cardiff. She was represented before the Court by the Community Law Partnership, a firm of solicitors based in Birmingham.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant is a gypsy. In 1999 she moved to the Cae Garw caravan site in Port Talbot, Wales, with her two children. The site was owned by Neath Port Talbot County Borough Council.
4. On 12 June 2000 Neath Port Talbot County Borough Council entered into a licence agreement with the Gypsy Council which provided that the latter would manage the site.
5. On 29 March 2004 the applicant entered into a licence agreement with the Gypsy Council to occupy pitch 16 on the site.
6. On 30 December 2004 the Gypsy Council issued a notice of termination of licence to the applicant which expired on 6 February 2005. The notice referred to a clause of her licence agreement which provided:
“The Gypsy Council or the Licensee may terminate this licence by giving the other not less than 28 days written notice to expire on a Sunday in any week.”
7. No further reasons justifying the termination were given.
8. On 18 January 2005 amendments to section 4 of the Caravan Sites Act 1968 (“the 1968 Act”) entered into force which introduced the possibility for possession orders to be suspended by a court on the application of the occupier for up to twelve months at a time (see further “Relevant domestic law and practice”, below).
9. On 2 August 2005 the Gypsy Council issued a claim for possession against the applicant and five others in Neath Port Talbot County Court. In its particulars of claim, the Gypsy Council alleged that all six defendants were guilty of causing very substantial nuisance to the site to the detriment of other occupiers.
“58. ... I do not consider it to be arguable that the decision of the claimants to seek possession against her was unreasonable or that their decision to invoke their domestic law rights could be castigated as unreasonable ...
59. Moreover, the fact that parliament has amended the applicable domestic legislation to afford the gypsy occupier the opportunity to contend that any possession order should be suspended for 12 months at a time distinguishes that case from Connors, and given that that amendment was considered in Kay and Price I find it impossible to say ... that there is a seriously arguable point raised that the law which enables the court to make the possession order is incompatible with article 8 ...”
10. He invited submissions from the applicant as to the possible temporary suspension of any possession order. He added:
“71. I should say that on the issue of suspension of the ... order against the [applicant] of possession I would invite the parties to consider the date of 4th November 2006 being the date on which the [applicant's] parents are required to leave and on which she indicates that she would leave anyway ...”
11. On 28 July 2006, following the applicant's submissions that any possession order against her should be suspended, Judge Bidder handed down his judgment on the remaining issues. Having reviewed the allegations made against the applicant by the claimant, the judge concluded:
“27. ... I am not satisfied that Maria Buckland has herself been guilty of any offensive behaviour on site, or of any breach of licence, apart from the relatively minor failure to pay the water charges.”
12. He was, however, satisfied that her son, who resided part of the time with her, had been involved in an incident on site in which he threatened someone with a gun, although it was not clear whether the gun had been real or merely an imitation.
13. Turning to consider the applicant's personal circumstances, and those of her son, the judge noted:
“32. In relation to Maria Buckland, while I am obliged to make a possession order, I find her only breach of site conditions has been recent and is a very modest failure to pay water charges. She has indicated in a recent statement that she intends to move from the site when [her parents] leave, that is on or before 4pm on 24th November. I do consider it appropriate to suspend enforcement of the possession order against her until the same time and date. However, I am clear that the behaviour of [her son] on this site and his attitude towards the Farrows [the family of the site manager] is such that I have to impose conditions on her continued possession, as sought in the draft order – [her son] lives half his time with his father, and I have no doubt that if he cannot live with his mother, he will be able to live with his father ...”
14. He made an order for possession against the applicant, which he suspended until 24 November 2006 upon the condition that her son leave the site and that she discharge the GBP 95 arrears of water charges at the rate of GBP 5 per week.
15. On 18 April 2007 the applicant was granted permission to appeal the possession order to the Court of Appeal. A stay of execution of the order of 28 July 2006 was also ordered.
16. In November 2007, a bill which would amend the Mobile Homes Act 1983 (“the 1983 Act”) was introduced to Parliament. The effect of the proposed amendment was to allow a defendant in possession proceedings such as the applicant to challenge before the County Court the reasonableness of making a possession order.
17. On 12 December 2007 the applicant's appeal was dismissed. Considering the impact of the amendment to the 1968 Act on whether the applicant could succeed in a conventional public law challenge to the decision to seek a possession order, Lord Justice Dyson noted:
“42. The significance of the amendment is that a claimant's decision to seek possession does not involve summary eviction without judicial scrutiny of the justification of the claim to possession. By issuing proceedings, the claimant submits to the jurisdiction of the court, which has power to investigate all the circumstances of the case, including the claimant's complaints about the defendant's behaviour.”
18. He continued:
“43. ... It may be that, for the reasons given by Lord Brown [in Kay], a public law defence could have been raised successfully in Connors. I would suggest that this is not so much because the family had been in occupation for a great length of time, but rather because it was unreasonable and grossly unfair for the local authority to seek a possession order and obtain the eviction of the occupier merely on the basis of a termination of the licence 'without the need to make good any underlying reason for taking such precipitate action'. The real difference between the present case and Connors is not that the appellant had been in occupation for a shorter period than was the family in Connors ... On any view, the site was her home and had been for a substantial period of time. The fact that she had not been in occupation for as long as the family in Connors is not, in my judgment, of much significance. The real difference between the two cases is that in Connors, once the licence had been terminated, the authority was entitled to an order for possession whose enforcement could not be suspended by the court.”
19. He concluded that since the amendment to the 1968 Act, it was difficult to conceive of a case in which a public law defence would succeed. Referring also to the fact that Judge Bidder had had made a finding of misconduct in the site by the applicant's son, for whose behaviour she was responsible under the terms of the licence, Dyson LJ considered that the judge was right to hold that the public law defence was not seriously arguable.
20. Dyson LJ further noted that the factual situation of Connors was not materially different from the present case in that in both cases the defendant had occupied a site as a home for a number of years. Further, in both cases the claimant had validly and properly terminated the defendant's licence to occupy so that the defendant had become a trespasser; the claimant was entitled to an order for possession as the owner of the land; and no further justification was required to seek an order for possession. However, it was agreed by the parties that it was not necessary to decide whether the present case could be distinguished from Connors as the distinction was only relevant for any appeal before the House of Lords.
21. Finally, in respect of the applicant's argument that the amendment to section 4 of the 1968 Act did not remedy the incompatibility with Article 8, Dyson LJ emphasised that, in principle, a wide margin of appreciation was left to the national authorities in such matters. However, he accepted that the vulnerable position of gypsies as a minority meant that “some special consideration should be given to their needs and different lifestyle both in the relevant regulatory framework and in reaching decisions in particular cases” (citing Connors, § 83). He found that the main reason for the narrowing of the margin of appreciation in Connors itself was that the complete absence of any procedural safeguards was a serious interference with the applicant's Article 8 rights in that case, which called for particularly weighty reasons of public interest in justification. However, the precise scope of these safeguards was in his view, a matter for the national authorities to determine. He considered that provided that a reasonable degree of protection was afforded by the domestic law, the Strasbourg Court would not interfere, even if a greater degree of protection could have been afforded. He accordingly rejected the applicant's submissions, noting:
“60. The objectionable feature of the legal regime in place before the amendment was that the court was bound not merely to make an order for possession, but to order the eviction of an occupant such as the appellant provided that the 4 weeks' notice was given. Absent a public law challenge, the occupant had no opportunity to challenge the reasons given by the local authority for seeking possession and the court had no jurisdiction to take the reasons into account in deciding whether to order the occupant's eviction. The local authority's reasons were irrelevant as were the occupant's personal circumstances. Nor did the court have power to suspend an order for possession even in circumstances of extreme hardship which indicated that eviction would not be justified under article 8(2). In short, there was no opportunity for the court to make any assessment of the justification for eviction in order to determine whether the interference with an occupier's rights under article 8(1) was justified on an application of article 8(2). Provided that the relevant formal requirements had been satisfied, the role of the court was purely mechanistic.
61. The amendment has introduced procedural protections which ensure that the role of the court is no longer a mechanistic one even when a local authority seeks to evict a licensee from a caravan site. Summary eviction has been replaced by judicial examination. Section 4(1) now provides that the enforcement of a possession order may be suspended for such period up to 12 months 'as the court thinks reasonable'. The court has a wide discretion under subsection (2) to impose conditions when making an order for suspension. By subsection (3), the court may extend the suspension of the possession order for up to 12 months at a time. Subsection (4) requires the court to have regard to 'all the circumstances' in deciding whether to exercise its power to suspend. The court is, therefore, required to conduct an examination of all the circumstances of the case ...”
22. He concluded:
“63. In my judgment, the decision to provide the procedural safeguards introduced by the amendment of section 4 of the 1968 Act was within the margin of appreciation available to the United Kingdom. More generous safeguards could have been introduced (and they will be when the 1983 Act is amended). But the amendment goes far enough to meet the real thrust of the criticisms made in Connors.”
23. As to the applicant's argument that the legislation discriminated against gypsies, Dyson LJ found that although the discrimination point was one of the features of the Court's reasoning in Connors, it was not the main reason for the decision. Even if that was wrong, Dyson LJ considered that by addressing the lack of procedural safeguards for gypsies of local authority sites, the amendment had also gone a long way to meeting the discrimination point. While discrimination would not be cured completely until the 1983 Act was amended, it had been much mitigated. Thus to the extent that the discrimination persisted, the decision not to eliminate it altogether fell within the margin of appreciation accorded to the contracting States.
24. On 18 February 2008 the House of Lords refused the applicant's request for permission to appeal.
25. In May 2008, following the refusal of leave to appeal and in the face of further threats of eviction, the applicant left Cae Garw caravan site together with her two children for alternative accommodation on land owned by her brother. The land has no planning permission for residential use and its occupants, which include the applicant's brother, his six children and the applicants' parents, share minimal facilities, namely one toilet and one sink with cold running water in a shed with no lighting.
B. Relevant domestic law and practice
1. The Caravan Sites Act 1968
26. Part I of the Caravan Sites Act 1968 (“the 1968 Act”) provides limited security of tenure to certain occupiers of caravans and caravan sites. Section 2 provides that at least four weeks' notice of termination of a licence to occupy a caravan site must be given.
27. Section 4(1) provides that when a court makes an order for the removal or exclusion of an occupier from a caravan site, it may suspend the enforcement of that order for up to twelve months at a time.
28. Section 4(4) provides that in considering whether or how to exercise its powers under this section, the court shall have regard to all the circumstances, and in particular to the questions:
“(a) whether the occupier of the caravan has failed, whether before or after the expiration or determination of the relevant residential contract, to observe any terms or conditions of that contract, any conditions of the site licence, or any reasonable rules made by the owner for the management and conduct of the site or the maintenance of caravans thereon;
(b) whether the occupier has unreasonably refused an offer by the owner to renew the residential contract or make another such contract for a reasonable period and on reasonable terms;
(c) whether the occupier has failed to make reasonable efforts to obtain elsewhere other suitable accommodation for his caravan (or, as the case may be, another suitable caravan and accommodation for it).”
29. Section 4(6) of the 1968 Act formerly excluded the court's power to suspend the enforcement of a possession order under section 4(1) in the case of possession proceedings brought by local authorities. However, the exclusion of local authority caravan sites from the ambit of the power to suspend under section 4(1) was removed by the Housing Act 2004, which entered into force on 18 January 2005, in respect of proceedings begun on or after that date.
2. The Mobile Homes Act 1983
30. The Mobile Homes Act 1983 (“the 1983 Act”) was enacted, inter alia, to restrict the eviction from caravan sites of occupiers of caravans. It applies to any agreement under which a person is entitled to station a mobile home on land forming part of a “protected site” and to occupy it as his only or main residence and implies into licence agreements falling within the ambit of its provisions various protective terms.
31. Section 2(1) and paragraph 4 of Schedule 1 to the 1983 Act provide that the owner of a relevant site is entitled to terminate the licence only if (i) he satisfies the court that the occupier has breached a term of the licence agreement and has failed to comply with a notice to remedy the breach; and (ii) the court considers it reasonable for the agreement to be terminated.
32. Section 5(1) defines “protected site” by reference to its definition in the 1968 Act (essentially applying to land authorised for long-term residence). However, the section expressly excludes from the definition any land occupied by a local authority as a caravan site providing accommodation for gypsies.
33. Pursuant to section 321 and Schedule 16 of the Housing and Regeneration Act 2008, which was enacted on 22 July 2008, the exclusion of land used for accommodating gypsies from the definition of “protected site” in section 5(1) of the 1983 Act was removed. However, the relevant amendment has not yet entered into force.
3. Judicial consideration of Article 8 in possession proceedings
34. For a general summary of domestic proceedings prior to November 2010 regarding the right of defendants to rely on Article 8 in the context of a defence to possession proceedings, see the Court's judgment in Kay and Others v. the United Kingdom, no. 37341/06, §§ 18-43, 21 September 2010.
35. Notably, in Kay and others v. London Borough of Lambeth and others; and Leeds City Council v. Price and others [2006] UKHL 10, Lord Hope of Craighead clarified the two “gateways” via which a defendant in possession proceedings could challenge his eviction:
“... 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 [“gateway (a)”], 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 [“gateway (b)”], he should be permitted to do this provided again that the point is seriously arguable ...”
36. Lord Brown of Eaton-under-Heywood referred to the amendment to the 1968 Act allowing the County Court to suspend, for up to twelve months at a time, any possession order in respect of a local authority caravan site and noted:
“... Now, therefore, the county court would be entitled to suspend the order made against someone in Mr Connors' position; previously, it was not.
By the same token moreover that the county court judge would have been unable, under the pre-existing law, to decline or postpone a possession order in the case of someone in Mr Connors' position, so too in my judgment he is unable in other cases to give greater effect or weight to the occupier's right to respect for his home than is allowed for under domestic law ...”
37. He added:
“The difficulty with [a public law] defence, however, is that it would be well nigh impossible to make good, the challenge necessarily postulating that under domestic property law the claimant authority was entitled to possession. Accordingly the argument could only be that no reasonable public authority could properly invoke that domestic law right. This would be a more stringent test than would apply were the court ... under a primary duty to reach its own judgment on the justifiability of making a possession order.
For my part I think that such an argument could perhaps have been mounted successfully in Connors: having regard to the great length of time (most of the preceding sixteen years) that that gypsy family had resided on the site, it was unreasonable, indeed grossly unfair, for the local authority to claim possession merely on the basis of a determined licence without the need to make good any underlying reason for taking such precipitate action ...
It is difficult to suppose, however, that a defence based on a public law challenge of this character to a public authority's decision to pursue its domestic law rights could properly succeed except in such an infinitely rare case as Connors itself ...”
38. The subsequent case of Doherty and others v. Birmingham City Council [2008] UKHL 57, decided after the applicant's appeal was dismissed, concerned the eviction of gypsies from a local authority caravan site. Lord Hope concluded that the Kay “gateway (a)” was available to the defendant in the case because the relevant legal framework was indistinguishable from that which applied in Connors. He considered that in light of the clear terms of the legislation allowing the local authority possession, there was no scope for interpreting it in a manner which was Convention-compatible and continued:
“50. ... This raises the question whether your Lordships should make a declaration of incompatibility ... The incompatibility with the appellant's article 8 rights that was to be found in section 4(6)(a) of the 1968 Act has been removed by section 211(1) of the Housing Act 2004. As already noted, a clause was included in the Housing and Regeneration Bill to remove the exclusion of local authority sites which provide accommodation for gipsies from the protection of the 1983 Act. Nevertheless, prior to its receiving the Royal Assent ..., Lord Walker favoured the making of a declaration of incompatibility in relation to section 5(1) of the 1983 Act.
51. I was at first inclined to doubt whether a declaration was necessary. The power to make a declaration ... is, after all, a discretionary one. But on reflection I agreed that it would be appropriate to make such a declaration in this case. Indeed I considered that the decision of the Strasbourg court in Connors left the House with no alternative but to do this. That was a judgment which was pronounced in a case against the United Kingdom. Its decision is as plain an indication as there could be that there was an incompatibility in our legislation that ought to be addressed by the United Kingdom Parliament ... In such circumstances the decision as to whether the incompatibility should remain was not for the court to take. It had to be left to the government and to Parliament, and it could not be taken for granted that the amending legislation would be passed. In the events that have happened, however, the making of a declaration has become unnecessary ...”
39. Lord Hope further found that “gateway (b)” was also available to the applicant and noted:
“54. The Court of Appeal said ... that it could see no purpose in remitting the case to the judge. I disagree, with respect, with this assessment ... [T]he [appeal] judge said that it seemed to him that in this case judicial review would be able to check the fairness and legality of the respondent's decision. Now that it is clear that arguments of that kind may be presented by way of a defence to the proceedings under gateway (b), I think that he should be given the opportunity to carry out that exercise. Any factual disputes that may exist between the parties as to the facts on the basis of which the decision was taken will be capable of being resolved by him too. Lord Brown's observations in para 210 of his opinion in Kay add a further point that is relevant to this issue. The site had been occupied as their home by the appellant and his family for about 17 years when the notice to quit was served. So it could be argued that it was unfair for the respondent to be able to claim possession without being required to make good the reasons that it gave in its own statement of claim for doing so.
55. ... 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. The further point to which Lord Brown referred will have a part to play in that assessment.”
40. He therefore concluded that the case should be remitted to the High Court so that the reasons that the local authority had given for serving a notice to quit could be reviewed. It would be for the judge to resolve any dispute that he needed to resolve about the facts and, having done so, to determine whether the decision to terminate the licence on the grounds stated in the particulars of claim, and having regard to the length of time that the appellant and his family had resided on the site, was reasonable. If he was satisfied that this requirement had been met he was required to make a possession order. If he was not satisfied he was required to decline to make the order unless or until a justification that meets that test had been made out.
41. On 3 November 2010 the Supreme Court handed down its judgment in Manchester City Council v. Pinnock [2010] UKSC 45 (“Pinnock”), sitting as a panel of nine judges. The case concerned possession proceedings brought against a demoted tenant. Following a review of the case-law, the Supreme Court considered the following propositions to be well established in the jurisprudence of this Court:
“(a) Any person at risk of being dispossessed of his home at the suit of a local authority should in principle have the right to raise the question of the proportionality of the measure, and to have it determined by an independent tribunal in the light of article 8, even if his right of occupation under domestic law has come to an end ...
(b) A judicial procedure which is limited to addressing the proportionality of the measure through the medium of traditional judicial review (i e, one which does not permit the court to make its own assessment of the facts in an appropriate case) is inadequate as it is not appropriate for resolving sensitive factual issues ...
(c) Where the measure includes proceedings involving more than one stage, it is the proceedings as a whole which must be considered in order to see if article 8 has been complied with ...
(d) If the court concludes that it would be disproportionate to evict a person from his home notwithstanding the fact that he has no domestic right to remain there, it would be unlawful to evict him so long as the conclusion obtains – for example, for a specified period, or until a specified event occurs, or a particular condition is satisfied.”
42. The Supreme Court considered that in order for domestic law to be compatible with Article 8 of the Convention, where a court was asked by a local authority to make an order for possession of a person's home, the court had to have the power to assess the proportionality of making the order, and, in making that assessment, to resolve any relevant dispute of fact. In terms of the practical implications of this principle, the Supreme Court noted that if domestic law justified an outright order for possession, the effect of Article 8 could, albeit in exceptional cases, justify granting an extended period for possession, suspending the order for possession on the happening of an event, or even refusing an order altogether. Finally, the court observed that the need for a court to have the ability to assess the Article 8 proportionality of making a possession order in respect of a person's home might require certain statutory and procedural provisions to be revisited.
43. In the context of demoted tenancies, the Supreme Court held that it was possible to read the relevant legislation as permitting a demoted tenant to raise the issue of proportionality by way of defence.
44. On 23 February 2001 the Supreme Court handed down its judgment in the joined cases of Mayor and Burgesses of the London Borough of Hounslow v. Powell; Leeds City Council v. Hall; Birmingham City Council v. Frisby [2011] UKSC 8 (“Powell and others”). In its judgment, the court extended its approach in Pinnock to introductory tenancies and tenancies under the homelessness regime.
45. Lord Hope clarified that the legitimate aim engaged by the decision to seek possession was that of “protection of the rights and freedoms of others”, an aim that embraced the vindication of the local authority's ownership rights and the compliance by the local authority with its duties relating to the distribution and management of the housing stock for the benefit of other tenants. Both aims would be presumed, unless a tenant raised a challenge. Any proportionality argument based on personal circumstances would be judged against these two aims, together with any additional aims pleaded by a local authority in a particular case.
46. With regard to the proportionality assessment, Lord Hope stated:
“33. The basic rules are not now in doubt. The court will only have to consider whether the making of a possession order is proportionate if the issue has been raised by the occupier and it has crossed the high threshold of being seriously arguable. The question will then be whether making an order for the occupier's eviction is a proportionate means of achieving a legitimate aim.”
47. The threshold for raising an arguable case on proportionality was a high one which would only succeed in a small proportion of cases. However, if the threshold was crossed, the court would have to consider whether making an order for possession was a proportionate means of achieving a legitimate aim. Lord Hope continued:
“The proportionality of making the order for possession at the suit of the local authority will be supported by the fact that making the order would (a) serve to vindicate the authority's ownership rights; and (b) enable the authority to comply with its public duties in relation to the allocation and management of its housing stock. Various examples were given of the scope of the duties that the second legitimate aim encompasses – the fair allocation of its housing, the redevelopment of the site, the refurbishing of sub-standard accommodation, the need to move people who are in accommodation that now exceeds their needs and the need to move vulnerable people into sheltered or warden-assisted housing ...
So, as was made clear in Pinnock ... there will be no need, in the overwhelming majority of cases, for the local authority to explain and justify its reasons for seeking a possession order. It will be enough that the authority is entitled to possession because the statutory pre-requisites have been satisfied and that it is to be assumed to be acting in accordance with its duties in the distribution and management of its housing stock. The court need be concerned only with the occupier's personal circumstances and any factual objections she may raise and, in the light only of what view it takes of them, with the question whether making the order for possession would be lawful and proportionate. If it decides to entertain the point because it is seriously arguable, it must give a reasoned decision as to whether or not a fair balance would be struck by making the order that is being sought by the local authority ...
...
In the ordinary case the relevant facts will be encapsulated entirely in the two legitimate aims [above]... It is against those aims, which should always be taken for granted, that the court must weigh up any factual objections that may be raised by the defendant and what she has to say about her personal circumstances. It is only if a defence has been put forward that is seriously arguable that it will be necessary for the judge to adjourn the case for further consideration of the issues of lawfulness or proportionality. If this test is not met, the order for possession should be granted. This is all that is needed to satisfy the procedural imperative that has been laid down by the Strasbourg court.”
COMPLAINTS
The applicant complained under Article 8 of the Convention that the Court of Appeal's decision to dismiss her appeal and uphold the judgment of HHJ Bidder QC was wrong in law and constituted an unjustified breach of her right to respect for her home and her family life.
She further complained under Article 8 taken together with Article 14 that the interference with her home and family life discriminated against her.
QUESTIONS TO THE PARTIES