European Court of Human Rights
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URL: http://www.bailii.org/eu/cases/ECHR/2011/809.html
Cite as: [2011] ECHR 809
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FOURTH SECTION
Application no.
3468/10
by Darrell DIXON
against the United Kingdom
lodged
on 11 January 2010
STATEMENT OF FACTS
THE FACTS
1. The applicant, Mr Darrell Dixon, is a British national who was born in 1965 and lives in London. He is represented before the Court by Ms J. Pritchard, a lawyer practising in London.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. In April 1983 Wandsworth London Borough Council (“WLBC”) granted the applicant, then aged 17, and his sister a joint secure tenancy of a two-bedroom flat.
4. On 14 October 2005 the applicant's sister served a notice to quit on WLBC thereby determining the joint tenancy as a matter of domestic law with effect from 14 November 2005. The reason for the notice to quit was unrelated to the applicant.
5. The applicant was informed by WLBC that his tenancy would come to an end of 14 November and was invited to apply for local authority housing. He was advised that if his application was successful it was likely that he would be offered smaller accommodation. He subsequently sought accommodation from WLBC.
6. By letter dated 15 December 2005 WLBC informed the applicant that the property he then occupied was too large for his needs. However, it agreed to offer the applicant a one-bedroom property. The letter concluded:
“... Please be aware that this is at the Council's discretion and only one offer will be made. Should it be unreasonably refused, the Council will have no alternative but to commence possession proceedings against you.”
7. He was advised that he would be informed as soon as a suitable property became available.
8. On 10 February 2006 the police executed a search warrant at the applicant's property. They found approximately one gram of cocaine in the applicant's possession, with a street value of GBP 40-50, which was accepted to be for the applicant's personal use. The applicant was prosecuted for possession of a Class A drug.
9. On 16 March 2006 the police executed a second search warrant at the applicant's property and found the applicant in possession of a small amount of herbal cannabis with a street value of GBP 3-5. The applicant was cautioned by the police.
10. On 22 March 2006 WLBC wrote to the applicant advising him that it had received information from the police regarding his recent arrests. Reference was made to the search warrants executed on 10 February and 16 March and to the fact that drugs were found on both occasions. The letter continued:
“I write to advise you that these incidents may have a serious effect on your application to the Council for a discretionary tenancy. The Council's Policy document on the allocation scheme states '... applicants will be eligible unless: ... the applicant ... has been guilty of unacceptable behaviour serious enough to make them unsuitable to be a tenant of the authority ...'. This includes illegal or immoral behaviour.”
11. The letter accordingly informed him that his application for housing would be reconsidered.
12. On 25 April 2006 the applicant pleaded guilty in the Magistrates' Court to the offence of possession of a Class A drug on 10 February 2006. He was fined GBP 300 and ordered to pay GBP 70 in costs.
13. On 8 May 2006 WLBC wrote to the applicant to advise him that his conviction for an arrestable offence was grounds for possession and that his application for a discretionary tenancy of the property would no longer be considered. He was advised to provide the Council with vacant possession by 15 May 2006, failing which a possession order would be sought.
14. On 27 June 2006 WLBC commenced possession proceedings. The applicant sought to defend the proceedings but the County Court granted an order for possession on 9 August 2006.
15. On 11 September 2006, following representations from the applicant's solicitors, WLBC wrote to the applicant's solicitors indicating that it would carry out a review of its decision to seek possession as a result of the applicant's conviction. Additional representations were invited from the applicant's solicitors, particularly on whether the April 2006 conviction was his only conviction and whether any further criminal offences were outstanding or under investigation by the police.
16. By letter dated 20 September 2006 the applicant's solicitors informed WLBC that the applicant's only other conviction was for theft in 1984 or 1985. The offence had not been committed in the locality of the property and the conviction was spent in 1995 under legislation concerning rehabilitation of offenders. WLBC were further advised that the applicant was participating in a drug rehabilitation programme.
17. On 4 October 2006 WLBC responded to the letter, indicating that further information from the police had revealed that the property was searched in 1996, resulting in a caution for possession of cannabis and supply of cocaine; in 1997, when no illicit drugs were found; and in March 2006, when a cannabis warning was issued. WLBC considered this to be relevant contextual information as it threw into doubt the applicant's argument that the May 2006 conviction was a first time event. Further comments on the additional information were requested from the applicant.
18. On 11 October 2006 the applicant's solicitors replied that he disputed that he had received a caution in 1996 for supply of cocaine and intended to follow this up with the police. He further considered the 1997 search to be irrelevant as no drugs were found.
19. Following subsequent communication with the police regarding the alleged caution for cocaine supply, the matter remained disputed as the original custody record had been destroyed.
20. By letter dated 19 March 2007 WLBC informed the applicant of its decision that he was ineligible for the allocation of housing under section 160A of the Housing Act 1996 (see “Relevant domestic law and practice”, below) and provided reasons for the decision. It noted that the February 2006 search warrant was executed early in the morning, which would have caused a disturbance to neighbours. Further, shortly afterwards a second search showed the applicant to be in possession of cannabis. The fact that he had a previous caution from 1996 demonstrated that the applicant's substance misuse was longstanding and thus likely to be difficult to overcome. It concluded that the applicant was unsuitable to be a tenant of the authority by reason of his unacceptable behaviour related to substance misuse.
21. The applicant sought leave to apply for judicial review of the decision that he was ineligible for local authority housing. Leave was initially refused on the papers but was granted following a renewed oral hearing on 17 October 2007.
22. On 20 December 2007 his claim was dismissed. The court accepted the argument of WLBC that Article 8 had no application to a decision that the applicant was ineligible to be awarded housing. As to the decision itself, the court was satisfied that the local authority had taken into account the applicant's long residence, the overall conduct of the tenancy and the applicant's efforts to address his behaviour. It further considered that there was a proper evidential basis for WLBC's conclusion that the applicant's problem of substance abuse was longstanding. In conclusion, the court found that WLBC had weighed the competing factors, had made proper findings of fact and had analysed evidence and relevant considerations with care. The decision was therefore not Wednesbury unreasonable (i.e. so unreasonable that no reasonable person would have made it).
23. On 29 April 2008 his application for permission to appeal was refused by the Court of Appeal. As to the applicant's Article 8 argument, Lord Justice Dyson concluded:
“11. Assuming, without deciding, that Article 8 is engaged at all – and the judge gave what seems to me to be a good reason why it was not – but assuming that it is engaged, it seems to me that Article 8 takes the applicant no further than his arguments based on the statutory scheme itself. Part 6 of the Housing Act as amended strikes the balance which Article 8 demands, and the code to which I have not referred in detail (but is a detailed exposition of how the authority should approach these statutory provisions) must, it seems to me, reflect – as I think Mr Gallivan [for the applicant] was inclined to accept – the Article 8 considerations. Therefore, whether one is considering a case of this kind under Article 8 or under the statutory scheme makes no difference. In other words, Article 8 adds nothing to the applicant's points made under the statutory scheme.”
24. The applicant subsequently applied to have the possession order set aside or for the execution of the warrant of possession to be stayed or suspended. He argued that the making of the order and its execution breached his Article 8 rights. The case was transferred by consent from the County Court to the High Court.
25. On 15 January 2009 the application was dismissed by the High Court. HHJ Bidder Q.C., sitting as a deputy High Court judge, considered that the domestic law which terminated the joint tenancy on the notice to quit given by the applicant's sister was compatible with Article 8 of the Convention and that no challenge to the eviction could therefore be made on this ground. He further held that as a matter of domestic law following the decision of the House of Lords in Kay (see “Relevant domestic law and practice”, below) the decision to evict the applicant could not be challenged on the basis of proportionality but only on the basis that no reasonable person would consider it justifiable. He drew a distinction between:
“...the Claimants being required as a public authority to take into account the article 8 rights of the Claimant and to consider proportionality and the Court substituting its view of proportionality for the Claimants'.”
26. The fact that WLBC did not specifically refer to the balancing exercise set out in Article 8 § 2 did not, in Judge Bidder's judgment, mean that their decision must necessarily be quashed as one which no reasonable authority could have taken. He noted that the applicant had been given the opportunity to make extensive comments about factual matters which ought to be taken into account and agreed with the reasoning of the High Court in dismissing the applicant's judicial review claim. He further referred to Dyson LJ's findings in the Court of Appeal. In conclusion, he considered that the decision not to allocate the applicant alternative accommodation necessarily meant that the local authority would proceed to evict him. Given that the former decision had been unsuccessfully challenged in judicial review proceedings on Article 8 grounds, and that in deciding to evict the applicant WLBC had performed the very balancing exercise required by Article 8, Judge Bidder concluded:
“70. Even if, therefore, proportionality were to form part of the [Kay] gateway (b) consideration [see “Relevant domestic law and practice” below] (whether it be on the review by me of the decision of the Claimants or on a determination whether a reasonable authority should have considered the article 8 rights when making its decision whether to bring possession proceedings) I am quite satisfied that the careful decision making process of [WLBC] amply accorded with article 8. I also consider that the decision that they made was one to which they reasonably could have come.”
27. Permission to appeal was refused on the papers on 6 May 2009. Lord Justice Sullivan noted that the distinction between Wednesbury unreasonableness and disproportionality was of no consequence in the case given Judge Bidder's conclusion at paragraph 70 of his judgment as to the proportionality of the decision (see above). The applicant renewed his application for leave at an oral hearing but he was unable to obtain legal aid funding to pursue the appeal orally. The judge refused the application for the reasons given by Sullivan LJ.
28. The applicant was evicted on 1 August 2009.
B. Relevant domestic law and practice
1. Determination of a joint tenancy
29. The domestic law concerning determination of joint tenancies was clearly set out in Hammersmith & Fulham LBC v. Monk [1992] 1 AC 478, which established that a notice to quit given by one joint tenant, without the concurrence of the other joint tenant, validly determined a periodic tenancy in the absence of a term to the contrary in the tenancy agreement.
2. Eligibility for local authority housing
30. Section 160A of Housing Act 1996 (“the 1996 Act”) provides, in so far as relevant:
“(1) A local housing authority shall not allocate housing accommodation–
...
(b) to a person who the authority have decided is to be treated as ineligible for such an allocation by virtue of subsection (7); ...
(2) Except as provided by subsection (1), any person may be allocated housing accommodation by a local housing authority (whether on his application or otherwise).”
31. Section 160A(7) provides that a local housing authority may decide that an applicant is to be treated as ineligible for an allocation of housing accommodation by them if they are satisfied that he has been guilty of unacceptable behaviour serious enough to make him unsuitable to be a tenant of the authority; and in the circumstances at the time his application is considered, he is unsuitable to be a tenant of the authority by reason of that behaviour.
32. Section 160A(8) defines unacceptable behaviour as behaviour which would, if the person were a secure tenant of the authority, entitle the authority to a possession order under section 84 of the Housing Act 1985 on any ground, other than ground 8, mentioned in Part 1 of Schedule 2 to that Act (see below).
33. Section 160A(9) provides that if a local housing authority decides that an applicant for housing accommodation is to be treated as ineligible for such an allocation by virtue of subsection (7), it shall notify the applicant of their decision and the grounds for it. Under section 160A(10), notice shall be given in writing.
34. Section 84 of the Housing Act 1985 states:
“(1) The Court shall not make an order for the possession of a dwelling-house let under a secure tenancy except on one or more of the grounds set out in Schedule 2.
(2) The Court shall not make an order for possession–
(a) on the grounds set out in Part 1 of that Schedule (grounds 1 to 8), unless it considers it reasonable to make the order, ...”
35. The relevant ground in the present case is ground 2 of Part 1 of the Schedule which states in so far as relevant:
“The tenant ... –
(b) has been convicted of–
(ii) an arrestable offence committed in, or in the locality of, the dwelling-house.”
3. Judicial consideration of Article 8 in possession proceedings
36. 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.
37. 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 ...”
38. The subsequent case of Doherty and others v. Birmingham City Council [2008] UKHL 57 considered the Kay gateways. As regards the scope of gateway (b), Lord Hope clarified:
“52. ... [T]he speeches in Kay show that the route indicated by this gateway is limited to what is conveniently described as conventional judicial review ...
53. ... [I]t 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 ...
...
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.”
39. 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.”
40. 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.
41. 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.
42. 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.
43. 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.
44. 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.”
45. 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 complains under Article 8 of the Convention that he was evicted from his home without the proportionality of the eviction being considered by an independent court.
He also complains under Article 13 that he was unable to defend the possession proceedings on the ground that his personal circumstances made the granting of a possession order disproportionate and that as a result he did not have access to an effective remedy in respect of his Convention complaint.
QUESTION TO THE PARTIES