COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SHEFFIELD COUNTY COURT
(HH JUDGE BARTFIELD) & SUNDERLAND COUNTY
COURT (HH JUDGE WALTON)
|Royal Courts of Justice|
London, WC2A 2LL
B e f o r e :
LORD JUSTICE LAWS
LORD JUSTICE KAY
Sheffield City Council
And – Central Sunderland Housing Company Limited
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Jan Luba QC & Liz Davis (instructed by Irwin Mitchell for the 1st Appellant Emma Smart)
Ashley Underwood QC & Richard Merrit (instructed by Central Sunderland Housing Company Limited Legal Services for the 2nd Respondent)
Jan Luba QC & Beatrice Prevatt (instructed by Ben Hoare Bell for the 2nd Appellant Janet Wilson)
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice Laws:
i) In the absence of the Human Rights Act 1998 (“HRA”) neither appellant would have had a defence to the respondent’s claim for possession.
ii) Both respondents, and the court below and this court, are public authorities within the meaning of s.6 HRA.
iii) Each respondent’s decision to serve a notice to quit was amenable as a matter of jurisdiction to the supervision of the High Court by way of judicial review.
iv) Although in each case the notice to quit (and in the Sunderland case the issue of possession proceedings) ante-dated the coming into force of HRA on 2 October 2000, the appellants may rely on the Convention rights to the extent that their points are good ones on the merits.
“2(1) A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any -
(a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights, …
6(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2) Sub-section (1) does not apply to an act if –
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently:
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.
(3) In this section ‘public authority’ includes -
(a) a court or tribunal,
(b) any person certain of whose functions are functions of a public nature,
(c) but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.
7(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may –
(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or
(b) rely on the Convention right or rights concerned in any legal proceedings,
but only if he is (or would be) a victim of the unlawful act.
8(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy or make such order within its powers as it considers just and appropriate.
22(4) Paragraph (b) of subsection (1) of section 7 applies to proceedings brought by or at the instigation of a public authority whenever the act in question took place; but otherwise that subsection does not apply to an act taking place before the coming into force of that section.”
1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
THE FIRST PROTOCOL
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
The housing legislation
“The general management, regulation and control of a local housing authority's houses is vested in and shall be exercised by the authority and the houses shall at all times be open to inspection by the authority…”
Next I should explain that until 1980, when the Housing Act of that year was passed, tenants of local authority housing had no security of tenure. The Act of 1980 has been succeeded by later legislation. Now local authority tenancies are, generally, secure tenancies by force of s.79 of the 1985 Act. Secure tenancies are subject to a special regime under the 1985 Act such that the tenant may not be evicted save by legal proceedings in which the landlord proves that one or more of certain objective grounds specified in Schedule 2 to the 1985 Act apply to the case: and even then the court will have a discretion whether to make an order for possession. However some local authority lettings are not secure tenancies. By Schedule 1 paragraph 1A to the 1985 Act a tenancy is not a secure tenancy if it is an introductory tenancy (introductory tenancies were the subject matter of this court’s judgment in the case of McLellan (Court of Appeal, 16 October 2001), to which I shall refer further). Of more direct relevance are the terms of paragraph 4 of Schedule 1 to the 1985 Act:
“A tenancy granted in pursuance of any function under Part VII of the Housing Act 1996 (homelessness) is not a secure tenancy unless the local housing authority concerned have notified the tenant that the tenancy is to be regarded as a secure tenancy.”
“(1) This section applies where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally.
This section has effect subject to section 197 (duty where other suitable accommodation available).
(2) Unless the authority refer the application to another local housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant.
(3) The authority are subject to the duty under this section for a period of two years (“the minimum period”), subject to the following provisions of this section…
(6) The local housing authority shall cease to be subject to the duty under this section if the applicant-
(a) ceases to be eligible for assistance,
(b) becomes homeless intentionally from the accommodation made available for his occupation….
“An applicant has the right to request a review of-
(a) any decision of a local housing authority as to his eligibility for assistance,
(b) any decision of a local housing authority as to what duty (if any) is owed to him under sections 190 to 193 and 195 to 197 (duties to persons found to be homeless or threatened with homelessness),…”
“If an applicant who has requested a review under section 202-
(a) is dissatisfied with the decision on the review,…
he may appeal to the county court on any point of law arising from the decision or, as the case may be, the original decision…
“A local housing authority shall not under section 206(1)(a) discharge their housing functions under this Part by providing accommodation other than-
(a) accommodation in a hostel within the meaning of section 622 of the Housing Act 1985, or
(b) accommodation leased to the authority as mentioned in subsection (2) below,
for more than two years (continuously or in aggregate) in any period of three years.
This applies irrespective of the number of applications for accommodation or assistance in obtaining accommodation made by the person concerned.”
The Decisions Below
The Appellants’ Submissions
i) Having correctly found that Article 6(1) ECHR was engaged in each of these cases by service of the notice to quit and the institution of possession proceedings, the judges were wrong to hold that the requirements of Article 6 were met by the available avenue of judicial review.
ii) Service of the notices to quit and institution of the possession proceedings in each case constituted a prima facie violation of the appellants’ rights under Article 8(1) ECHR. But Mr Luba mounted no very vigorous attack on the entitlement of the local authorities to take these steps. The core of his case lay in the proposition that once the possession claims came for trial in the county court, it was the judge’s duty under Article 8(2) ECHR to decide for himself whether an order for possession was necessary and proportionate to the purpose for which it was sought, namely (as I assume Mr Luba would accept) the fair and orderly management of the council’s housing stock. It was submitted that such an exercise would require the judge to hear evidence about the complaints made against the tenant, to assess their gravity, and to consider any particular matters put forward by the tenant in support of her claim to remain where she was. In short, if in any such case a possession order was to be made it would only be upon a finding by the county court judge that the order was objectively justified by reference to Article 8(2) ECHR.
iii) In contrast to the position relating to introductory tenancies (considered in McLellan) and assured shorthold tenancies (considered in Donoghue (2001) 33 HLR 73) there is no mandatory requirement imposed by statute such that the county court is obliged to make an order for possession in the case of a non-secure tenancy upon proof of a regular notice to quit properly served. In those circumstances it is open to the county court judge to refuse to make an order for possession if his obligations under ss.6 and 8 HRA so require.
iv) No proper Article 8(2) investigation was conducted by the court in either of these cases. The appeals must therefore be allowed, and the cases remitted for further hearings in the county court. Although as I have made clear there was no contest of the appellant’s evidence in the Sunderland case that she had not been involved in the disturbances complained of, Mr Luba (as I understood him) accepted that if his appeal succeeds in principle, the respondent local authority should have the opportunity of deploying its factual case on the merits at a further hearing.
The Respondents’ Arguments
The Issues Considered
“Judicial control over the legality of a decision does not require a complete rehearing of the merits. But it seems to me that in considering whether a section of a statute is compatible or not, this court should be inclined to assume that the administrative court will at least be likely to ensure that its procedures will enable it to test the legality of a decision, and in particular whether that decision infringes the human rights of a tenant such as the tenants in the appeals before us. Support for this view appears from paragraph 89 of Halsbury’s Laws Vol I(1) 4th Ed. reissue 2001, where it says ‘Where the exercise of a discretionary power is liable to interfere with fundamental human rights, the courts will examine the decision maker’s actions more rigorously than where such interests are not directly affected by the action taken…’ citing Lord Hope in R v DPP ex p Kebilene  3 WLR 972 at 993-994.”
Earlier at paragraphs 85 – 94 Waller LJ cited substantial extracts from the speech of Lord Hoffmann in Alconbury  2 WLR 1389, to which I have paid close attention but with great respect need not set out.
“In my judgment, in a case such as this, the court should undoubtedly give a significant margin of discretion to the decision of the Secretary of State. The Convention right engaged is not absolute. The right to respect for family life is not regarded as a right which requires a high degree of constitutional protection.”
i) These appellants were homeless, and were provided with accommodation by the respondents which, but for the relevant provisions of Housing Act 1996 and the respondents’ fulfilment of their duties under it, they would not have enjoyed at all.
ii) By s.193(3) of Housing Act 1996 the duty to house someone qua homeless person extends for two years only.
iii) Under the legislation homeless persons are accorded rights which in one important respect significantly exceed the rights to housing enjoyed by other persons against local housing authorities: upon the relevant statutory conditions being demonstrated, a homeless person is entitled to be housed then and there; he/she does not have to wait in the “queue” which exists for those seeking local authority housing in the ordinary way under Part VI of Housing Act 1996 (whose provisions I need not describe).
iv) The effect of Schedule 1 paragraph 4 to the 1985 Act, together with s.207 of Housing Act 1996, is that secure tenancies are not to be made available to persons housed as homeless persons. A homeless person may be provided with accommodation as a council tenant in the ordinary way (as I have said, under Part VI of Housing Act 1996); and such accommodation may consist in the same housing as had been provided to him/her as a homeless person under s.193. That is the circumstance contemplated by the power given in paragraph 4 of Schedule 1 to “[notify] the tenant that the tenancy is to be regarded as a secure tenancy”. But where that happens, the tenant is no longer being housed pursuant to the council’s duty to homeless persons, but simply as a council tenant within Part VI.
v) Where a homeless person, housed as such by the local authority, is evicted pursuant to a notice to quit and possession proceedings, the council’s duty under s.193 does not necessarily fall away. Within the two-year period it continues until and unless terminated by an event which engages s.193(6). If the local authority were to assert that she was intentionally homeless (s.193(6)(b)) by virtue of her conduct which led to their serving the notice to quit, she would, upon putting the matter in issue, be entitled to an internal review on the merits within s.202(1), and thereafter (if she lost at the review) to an appeal to the county court on a point of law under s.204. The scope of the county court’s jurisdiction on such an appeal is effectively the same as that of a conventional judicial review.
“… the concept of ‘home’ within the meaning of Article 8 is not limited to those which are lawfully occupied or which have been lawfully established. ‘Home’ is an autonomous concept which does not depend on classification under domestic law. Whether or not a particular habitation constitutes a home which attracts the protection of Article 8(1) will depend on the factual circumstances, namely, the existence of sufficient and continuous links.”
“The evaluation of the suitability of alternative accommodation will involve a consideration of, on the one hand, the particular needs of the person concerned – his or her family requirements and financial resources – and, on the other hand, the rights of the local community to environmental protection. This is a task in respect of which it is appropriate to give a wide margin of appreciation to national authorities, who are evidently better placed to make the requisite assessment.”
“In situations where the law affords an unqualified right to possession on proof of entitlement, it may be that Article 8.2 is met, but that is not the present class of case…”
Donoghue (2001) 33 HLR 73 was such a case. This court had to consider the impact of Article 8 upon the application of s.21(4) of the Housing Act 1988. That requires (the verb is “shall”) the court to make an order for possession of premises let under an assured shorthold tenancy if it is satisfied that a notice complying with certain conditions has been given by the landlord to the tenant. Lord Woolf CJ, giving the judgment of the court, said this at paragraph 69:
“… in considering whether Poplar can rely on Article 8(2), the Court has to pay considerable attention to the fact that Parliament intended when enacting section 21(4) of the 1988 Act to give preference to the needs of those dependent on social housing as a whole over those in the position of the defendant. The economic and other implications of any policy in this area are extremely complex and far-reaching. This is an area where, in our judgment, the courts must treat the decisions of Parliament as to what is in the public interest with particular deference. The limited role given to the court under section 21(4) is a legislative policy decision. The correctness of the decision is more appropriate for Parliament than the courts and the HRA does not require the courts to disregard the decisions of Parliament in relation to situations of this sort when deciding whether there has been a breach of the convention.”
“If following the review the council decide to continue with the possession proceedings, they again must give their reasons. The application for possession then comes before the County Court. If there is a challenge to the reasons given and/or if the tenant asserts that the exceptions in Article 8(2) do not apply in the particular case, and the judge thinks that arguable, the judge will adjourn to allow an application to be made for judicial review. Should the decision of the review panel be found to have been reached without proper evidential basis or upon a view of the facts which could not reasonably be entertained or on the basis of a material error of fact, then that would be a ground for review in the High Court… In addition, if the judge thought that although the decision to evict was not in breach of Article 8 the pace of the eviction which was taking place was out of proportion and an infringement of the tenant’s human rights, he could use section 89 and grant an extension of time, albeit for a limited period.”
Waller LJ concluded at paragraph 67:
“In my view therefore the introductory tenancy scheme is not as such incompatible with Article 8, and there is no reason to think that individuals’ rights will be infringed without remedy from the courts.”
47. I would dismiss these appeals.
Lord Justice Kay:
Lord Justice Thorpe: