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URL: http://www.bailii.org/eu/cases/ECHR/2011/865.html
Cite as: [2011] ECHR 865
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FOURTH SECTION
Application no.
56387/07
by Paul David WILKES and Amanda Jane WILKES
against
the United Kingdom
lodged on 20 November 2007
STATEMENT OF FACTS
THE FACTS
1. The applicants, Mr Paul David Wilkes and Mrs Amanda Jane Wilkes, are British nationals who were born in 1962 and 1965 respectively and live in Blackpool. They are represented before the Court by Mr G. Stuart of Atkinson, Cave and Stuart, a lawyer practising in Blackpool.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. On 2 August 2006 Blackpool Borough Council (“the Council”) granted the applicants an introductory tenancy in respect of a property in Blackpool (“the property”). On or about 7 August 2006 they moved into the property with their children.
4. Between 7 August 2006 and 2 January 2007 complaints concerning 57 separate incidents were recorded against the applicants and their family. In particular, it was alleged that the second applicant and the applicants’ son and daughter had, on numerous occasions, physically and verbally assaulted security officers and neighbours. In addition, it was alleged that the second applicant and her daughter had threatened to kill a neighbour, while her son had threatened to burn down a block of flats and, on one occasion, had indecently exposed himself to passers-by. On 9 January 2007 the Council served on the applicants a statutory notice of proceedings to determine the tenancy. It expressly stated that the reason for the serving of the notice was the applicants’ anti-social behaviour.
5. The applicants requested a review of the Council’s decision to seek an order of possession. The review was conducted by a five-member panel of the Employment and Appeals Committee made up of elected councillors who had formed no part of the original decision-making process. The applicants did not attend the review either in person or through their legal representatives. Instead, they delivered a letter to the review panel through their solicitors admitting many, but not all, of the factual allegations against them. On 5 February 2007 the review panel concluded that the Council had been justified in seeking the order. In particular, they found that the extent of the anti-social behaviour was so serious that it was necessary for the Council to seek the order of possession to avoid endangering the health and safety of other people living in the locality.
6. On 19 February 2007 the Council issued possession proceedings in Blackpool County Court. In their defence the applicants submitted that the possession proceedings violated their right to respect for their home under Article 8 of the Convention (“the merits defence”) and that the Council’s decision to seek possession was an unlawful and improper decision (“the public law defence”). They also counter-claimed that the decision of the review panel breached the requirements of Article 6 § 1 of the Convention as the panel was not impartial or independent.
7. The application came before the County Court Recorder on 8 June 2007. In relation to the public law defence, he found that the applicants had no realistic prospect of success. In relation to the merits defence, the Recorder considered himself bound by R (McLellan) v Bracknell Forest Borough Council and Reigate and Banstead Borough Council v Benfield and another [2002] QB 1129, in which the Court of Appeal stated that in the context of introductory tenancies, there was simply no room to conclude that there might be any incompatibility with the Convention. He therefore struck out the applicants’ defence. He also struck out the applicants’ counterclaim as he was not empowered to grant the declarations sought.
8. The Recorder refused the applicants’ request for leave to appeal to the Court of Appeal on the ground that an appeal would have no prospect of success.
B. Relevant domestic law and practice
1. Introductory tenancies
9. Part V of the Housing Act 1996 provides as follows:
“124 Introductory tenancies
(1) A local housing authority or a housing action trust may elect to operate an introductory tenancy regime.
...
125 Duration of introductory tenancy
(1) A tenancy remains an introductory tenancy until the end of the trial period, unless one of the events mentioned in subsection (5) occurs before the end of that period.
(2) The “trial period” is the period of one year beginning with—
(a) in the case of a tenancy which was entered into by a local housing authority or housing action trust—
(i) the date on which the tenancy was entered into...
...
127 Proceedings for possession
(1) The landlord may only bring an introductory tenancy to an end by obtaining an order of the court for the possession of the dwelling-house.
(2) The court shall make such an order unless the provisions of section 128 apply.
(3) Where the court makes such an order, the tenancy comes to an end on the date on which the tenant is to give up possession in pursuance of the order.
128 Notice of proceedings for possession
(1) The court shall not entertain proceedings for the possession of a dwelling-house let under an introductory tenancy unless the landlord has served on the tenant a notice of proceedings complying with this section.
...
(6)The notice shall inform the tenant of his right to request a review of the landlord’s decision to seek an order for possession and of the time within which such a request must be made.
...
129 Review of decision to seek possession
(1) A request for review of the landlord’s decision to seek an order for possession of a dwelling-house let under an introductory tenancy must be made before the end of the period of 14 days beginning with the day on which the notice of proceedings is served.
(2) On a request being duly made to it, the landlord shall review its decision.
(3) The Secretary of State may make provision by regulations as to the procedure to be followed in connection with a review under this section.
Nothing in the following provisions affects the generality of this power.
(4) Provision may be made by regulations—
(a) requiring the decision on review to be made by a person of appropriate seniority who was not involved in the original decision, and
(b) as to the circumstances in which the person concerned is entitled to an oral hearing, and whether and by whom he may be represented at such a hearing.
(5)The landlord shall notify the person concerned of the decision on the review.
If the decision is to confirm the original decision, the landlord shall also notify him of the reasons for the decision.
(6)The review shall be carried out and the tenant notified before the date specified in the notice of proceedings as the date after which proceedings for the possession of the dwelling-house may be begun.”
2. Judicial consideration of Article 8 in possession proceedings
10. 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.
11. 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 ...”
12. 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 ...”
13. He added:
“The difficulty with such [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 ...”
14. 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.”
15. On 3 November 2010 the Supreme Court sitting as a panel of nine judges in Manchester City Council v. Pinnock [2010] UKSC 45 (“Pinnock”) considered the application of Article 8 to a claim for possession brought against a demoted tenant under Chapter 1A of Part V of the Housing Act 1996 (as inserted by paragraph 1 of Schedule 1 to the Anti-social Behaviour Act 2003). 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.”
16. The Supreme Court thus 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.
17. 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.
18. 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.
19. In London Borough of Hounslow v Powell and Others [2011] UKSC 8 (“Powell”), handed down on 23 February 2011, the Supreme Court held that the principle in Pinnock applied not only to demoted tenancies but to all cases where a local authority was seeking possession in respect of a property that constituted a person’s home for the purposes of Article 8.
20. Lord Hope observed that following Pinnock the court had to have the ability to assess the Article 8 proportionality of making a possession order in respect of a person’s home, even if his or her right to occupation had come to an end. The question of whether the property in question constituted the defendant’s “home” was likely to be of concern only in cases where an order for possession was sought against a defendant who had only recently moved into accommodation on a temporary or precarious basis. Therefore, in most cases it could be taken for granted that a claim by a person who was in lawful occupation to remain in possession would attract the protection of article 8.
21. With regard to the proportionality assessment, Lord Hope stated that:
“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.”
22. 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. In Kryvitska and Kryvitskyy v Ukraine (Application No 30856/03) (unreported) given 2 December 2010, para 46 the Strasbourg court indicated that the first aim on its own will not suffice where the owner is the State itself. But, taken together, the twin aims will satisfy the legitimate aim requirement.
So, as was made clear in Pinnock, para 53, 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: Kryvitska and Kryvitskyy v Ukraine, para 44.
...
In the ordinary case the relevant facts will be encapsulated entirely in the two legitimate aims that were identified in Pinnock, para 52. 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 applicants complain that the possession proceedings violated their rights under Article 8 of the Convention. They further complain that the review panel was not an impartial and independent tribunal as required by Article 6 § 1 of the Convention.
QUESTIONS TO THE PARTIES