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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Manchester City Council v Pinnock (Rev 1) [2009] EWCA Civ 852 (31 July 2009)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2009/852.html
Cite as: [2009] 32 EG 68, [2010] PTSR 423, [2010] WLR 713, [2010] 3 All ER 201, [2010] HLR 7, [2010] 1 WLR 713, [2009] EWCA Civ 852, [2009] BLGR 869
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANCHESTER COUNTY COURT
HH JUDGE HOLMAN
8MA15403
Strand, London, WC2A 2LL |
||
B e f o r e :
LORD JUSTICE LLOYD
and
LORD JUSTICE STANLEY BURNTON
____________________
| Pinnock |
Appellant |
|
| - and - |
||
| Manchester City Council |
Respondent |
|
| - and - |
||
| The Secretary of State for Communities and Local Government |
Intervener |
____________________
Andrew Arden QC and Jonathan Manning (instructed by Susan Orrell, City Solicitor) for the Respondent
Daniel Stilitz (instructed by the Treasury Solicitor for the Secretary of State for Communities and Local Government
Hearing date: 15 July 2009
____________________
Crown Copyright ©
- The Appellant, Cleveland Pinnock, appeals against the order made by His Honour Judge Holman on 22 December 2008 in Manchester County Court requiring him to give up possession of the property at 65 Meldon Road ("the property") in Longsight of which he had been the tenant of the Respondent local authority for some 30 years. At that date, the Appellant was a demoted tenant of the property, and the order for possession was made pursuant to section 143D of the Housing Act 1996 as amended by the Anti-Social Behaviour Act 2003 ("the 2003 Act")
- The appeal raises questions of general importance as to the jurisdiction of the County Court on a claim for possession of a property that is the subject of a demoted tenancy, and of the matters to be taken into account by a landlord of a demoted tenancy when deciding whether to seek possession, and by a court that is asked to review that decision.
- Most tenants of local authorities (and the other landlords listed in section 80 of the Housing Act 1985) are secure tenants. Apart from cases where there is an offer of suitable alternative accommodation, their landlords cannot obtain possession without establishing specified grounds for possession (see Schedule 2 to that Act) and that it is reasonable to make an order for possession; and the court has wide powers under section 85 to adjourn the proceedings or to make an order for possession suspended on prescribed conditions, for example as to the payment of arrears of rent.
- The statutory provisions relating to demoted tenancies were introduced by the 2003 Act by amendment to the Housing Act 1985 and the Housing Act 1996. Section 82A of the 1985 Act is, so far as relevant, as follows:
- Section 153A provides, so far as presently material:
- Demoted tenancies are the subject of Chapter 1A of Part 1 of the 1996 Act. Its relevant provisions at the times material to this appeal were as follows:
- The Secretary of State has made regulations under the power conferred by section 143F(3): the Demoted Tenancies (Review of Decisions) (England) Regulations 2004. Among other things, they require the review to be carried out by a person who was not involved in the original decision, and, where the review is of a decision made by an officer of the landlord and is to be carried out by an another officer, the officer reviewing the decision must occupy a more senior position within the organisation of the landlord. The tenant is entitled to at least 5 clear days' notice of the date of the review, and if he so requests he is entitled to an oral hearing.
- As mentioned above, the Appellant has lived at the property for some 30 years. He lives there with his partner, Christine Walker. There are five children, Clive, aged 26, Trevor, aged 23, Devon, aged 21, and twins Orreon and Orraine, aged 19. According to the Appellant, in 2007 and 2008 only the twins lived at the property.
- On 31 March 2005 the Respondent, the local housing authority for the City of Manchester, brought proceedings against the Appellant seeking a demotion order under section 82A of the Housing Act 1985 as amended by the 2003 Act. Its claim for a demoted order was tried by Mr Recorder Scott Donovan together with the Respondent's alternative claim for possession. Following several days of trial over a considerable period, in a long and admirably clear and comprehensive judgment handed down on 8 June 2007 the learned Recorder found that there had been a number of serious incidents of anti-social behaviour on the part of the Appellant's family at or near the property, although not, I should make it clear, on the part of the Appellant himself. The incidents included a racial Public Order Act offence committed by Orreon in October 2006 in breach of his existing Anti-Social Behaviour Order, driving while disqualified by Devon in the exclusion zone specified in his ASBO, and a serious offences of blackmail committed by Orreon in 2005, who obtained some £1,000 by repeated, almost daily, threats of violence against a 16-year-old youth. Those offences too were in breach of his existing ASBO. In a schedule to his judgment, the Recorder listed no less than 32 matters between 1998 and January 2007 involving the family, including sentences for criminal offences, the imposition and breach of ASBOs, an Anti-Social Behaviour injunction granted against Christine Walker and breach of that injunction.
- One of the issues before the Recorder was whether Devon resided in the property. The Appellant maintained that he did not, but lived with his girlfriend, occasionally visiting the property. Ms Walker's evidence was to the like effect. The Recorder found as a fact that Devon Pinnock's principal address was the property, although he might be living from time to time with his girlfriend, and did so for most of the week.
- The Recorder's conclusions were set out under paragraph 25 of his judgment:
- Pursuant to the Recorder's order, the Appellant's demoted tenancy began on 8 June 2007. In his judgment under appeal, His Honour Judge Holman set out the relevant terms of the Appellant's secure tenancy that was replaced by the demoted tenancy:
- The judgment and the Respondent proceeded on the basis that those terms were incorporated in the demoted tenancy, and I assume that this was because they were the subject of a notice served on the Appellant under section 82A(7) of the Housing Act 1985. However, as will be seen, the decision on this appeal does not depend on the incorporation of those terms.
- On 6 June 2008, just before the date when by virtue of section 143B(1) of the 1996 Act the Appellant's demoted tenancy would have become a secure tenancy, pursuant to section 143B(3) the Respondent served notice of proceedings for possession of the property ("the possession notice"). By virtue of section 143B(4), the service of that notice extended the period of the demoted tenancy until, in the events that happened, and subject to this appeal, the date on which the Appellant gives up possession: section 143D(3).
- The possession notice set out the reasons why the Respondent was applying for a possession order. It alleged that the Appellant was in breach of clauses 4.2 and 4.3 by reason of two incidents:
- The Appellant duly requested a review. He sought an oral hearing, at which he would be, and in due course was, represented by his solicitor. The review took place on 2 July 2008, when they were accompanied by Ms Walker. The panel consisted of officers of the Council who were senior to the officer who had made the decision to serve the notice, and they had not previously been involved in that decision. The Respondent was informed of the decision to uphold the decision to terminate his tenancy by letter dated 3 July 2008. The panel's reasons as set out in that letter were as follows:
- The Council issued its proceedings for possession of the property on 15 August 2008. The Appellant defended the claim on the following grounds:
- These grounds, other than (d), assumed that the county court has jurisdiction, on a claim for possession of a demoted tenancy, to review the substance of the Council's decision on its review, and was not restricted to considering whether the statutory procedure had been followed. The judge held:
- The judge then considered the grounds put forward by the review panel. He held that none of the matters referred to in the notice of 6 June 2008 justified requiring Mr Pinnock to give up possession: if those were the only matters in issue, the Council's decision would have been Wednesbury unreasonable. The judge assumed that the Council had to prove a breach of the tenancy agreement, as indeed the panel had stated. The September 2007 incident involved Clive running off from the property in order to avoid arrest by the police, and there was no evidence that it had caused a nuisance or annoyance to people in the local community. So far as the dangerous driving by Devon was concerned, the panel had not found as a fact that he resided at the property. The judge said:
- However, the judge held that, contrary to the submissions made on behalf of Mr Pinnock, the panel had been entitled to have regard to the burglary committed by Orreon, of which he had been convicted after Council had served the notice of 6 June 2008, and of which Mr Pinnock had known, to which he had referred to in his witness statement put before the panel, and with which he had been able to deal before the panel. Furthermore,
- He concluded:
- In his characteristically attractive and cogent submissions, Mr Drabble QC contended:
- In relation to Article 6, Mr Drabble accepted that the decision of this Court in Gilboy is binding at the level of the Court of Appeal, but reserved the right to argue that it was incorrectly decided if this case goes further. I say no more about it.
- For the Respondent Council, Mr Arden QC submitted:
- Mr Stilitz, in his clear submissions, endorsed the submissions of Mr Arden in relation to the statutory scheme.
- Apart from authority, I would be tempted to accept Mr Drabble's submission that a local authority, when deciding whether to seek possession of a dwelling-house let on a demoted tenancy, must consider the rights of the tenant (and of those others whose home it is) under Article 8, and should only seek possession where the eviction of the tenant when that is justified under Article 8.2, i.e., that eviction is necessary as a proportionate response to the situation with which it is faced. There cannot, after all, be a much clearer interference with the right to respect for one's home than eviction. I would, however, reach a very different conclusion from Mr Drabble as to the application of Article 8.2 in circumstances such as the present.
- The obtaining of possession of a property subject to a demoted tenancy is the second part of a two-stage process, and the whole process must be considered if the landlord's decision is to be fairly and lawfully considered in its context. The first stage is the application under section 82A of the 1985 Act for a demotion order. That order is made in a procedure that clearly complies with Article 6: the order can only be made by a court, which is an independent and impartial tribunal, and it has full jurisdiction on fact and law. The court cannot make a demotion order unless it is satisfied that the tenant or a person residing in or visiting the dwelling-house has engaged or threatened to engage in anti-social behaviour (or the use of the premises for unlawful purposes), and that it is reasonable to make the order. There is no difference, other than verbal, between the requirement that it must be reasonable to make the order, and the requirement of proportionality under the European Convention on Human Rights, and specifically Article 8: see the speech of Lord Bingham in Kay v Lambeth LBC [2006] UKHL 10 [2006] 2 AC 465 at paragraph 35, cited below. A demotion order is a drastic measure: it deprives the tenant of his security of tenure for the period of the demotion order and, as will be seen, removes from the county court the jurisdiction to examine whether the making of an order evicting the tenant, if it comes to that, is reasonable or proportionate. It is a far more drastic step than the making of a suspended possession order, following which the county court retains supervision of the landlord's claim, and may vary the conditions of the order or in due course discharge or rescind the order: section 85 of the 1985 Act.
- Thus, when a demotion order has been made, the court has found the removal of security a necessary and proportionate response to the conduct of the tenant or those residing with or visiting him. Indeed, in the present case the Recorder expressly referred to proportionality when refusing to make an immediate order for possession; and he clearly took it into account when deciding that it was reasonable to make a demotion order; and there was no appeal against his judgment.
- When, as here, the conduct of the tenant or those residing with or visiting him has been so serious as to justify a demotion order, very little is required to justify the landlord's decision to obtain possession. It would be wholly wrong, and inconsistent with the statutory scheme, to scrutinise the landlord's decision at the second stage with the rigour required of the county court at the first stage.
- Proportionality at the second stage is not a high test, and I see no real difference at the second stage between it and the domestic requirement, to which I refer below, that the landlord's decision must not be one that no reasonable person would consider justifiable. If on review the landlord considers for good reason (about which I shall comment below) that it is necessary or appropriate to obtain possession of a dwelling-house let on a demoted tenancy, and its decision is one that no reasonable person would consider unjustifiable, the requirement of proportionality will be satisfied.
- If Article 8 requires the personal circumstances of the tenant to be considered, I would say that they have been: by the county court (here Mr Recorder Scott Donovan) on the application for the demotion order, and by the respondent local authority within the framework laid down by statute when it decided to serve its notice seeking possession and by the review panel subsequently.
- However, this matter is not free from authority, and in my judgment the authorities establish that the landlord's decision at the second stage is not subject to the requirement of proportionality. To paraphrase the words of Lord Bingham in Kay, and to summarise the effect of the authorities to which I refer below, the statutory scheme must be taken to represent a democratic solution to the problems inherent in anti-social behaviour; and the second stage decision of a landlord of a demoted tenant must be taken to satisfy the requirements of Article 8.2, provided it is one that no reasonable person could consider unjustifiable.
- I do not propose to review the jurisprudence of the European Court of Human Rights that bears upon this appeal: we are bound by precedent to accept the binding indistinguishable authority of decisions of the House of Lords and the Court of Appeal unless and until the House of Lords decides differently. The significant domestic decisions are those of the House of Lords in Kay and Doherty (which supersedes London Borough of Harrow v. Qazi [2003] UKHL 43 [2004] 1 AC 983 [2003] 3 WLR 792), and the subsequent decisions of the Court of Appeal in Doran and Taylor.
- Kay was of course concerned not with a demoted tenancy, but with trespassers. Lord Bingham said:
- Lord Nicholls said:
- Lord Hope of Craighead's speech is important in the present context:
- Baroness Hale helpfully summarised the position:
- Lord Brown said:
- I see no relevant difference between an introductory tenancy, to which Lord Brown referred, and a demoted tenancy.
- The House of Lords clarified the legal position in Doherty v Birmingham City Council [2008] UKHL 57 [2009] 1 AC 367 [2008] 3 WLR 636. The case concerned gipsies resident on a travellers' caravan site owned by the respondent local authority. They had been served with notice to quit. Because of the provisions of the applicable legislation, they had no security of tenure, and on expiration of the notice to quit ceased to have any proprietary or other right to remain in occupation. Lord Hope, with whom Lord Rodger agreed, said:
- In paragraphs 52 and following, Lord Hope addressed what has become known in the jargon as gateway (b): the defence to a claim for possession that the public authority's decision to seek possession was unlawful:
- Doherty was considered by the Court of Appeal in Doran v Liverpool City Council [2009] EWCA Civ 146. That case too concerned a traveller whose licence to occupy a pitch on a site run by the council under the regulations of the Caravan Sites Act 1968. Toulson LJ gave the only substantive judgment, with which the other members of the Court agreed:
- Lastly, in Central Bedfordshire Council v Taylor [2009] EWCA Civ 613 the appellant defendants had become trespassers as a result of the claimant's termination of their lessor's lease. Again, the Court of Appeal considered the effect of Kay and Doherty. Waller LJ said:
- Lloyd LJ said:
- Lloyd LJ made it clear that his reasons for dismissing the appeal were much the same as those of Waller LJ, and Richards LJ agreed.
- In my judgment, two simple propositions follow from these authorities. First, a landlord deciding to seek possession in a statutory context such as the present, and a court making an order for possession, is acting so as to give effect to or enforce statutory provisions, and if those provisions are incompatible with Convention rights, the landlord's decision and the order of the county court is nonetheless lawful by virtue of section 6(2)(b) of the Human Rights Act 1998.
- Secondly, on a judicial review of the landlord's decision, the applicable grounds are those applicable on a non-Convention domestic review, subject to the rationality test extended as stated by Lord Hope in Doherty and commented upon in Doran and Taylor.
- Logically, the first question to be addressed is whether the judge sitting in the county court had jurisdiction to review the decision of the Council's review panel. If the answer is "No", the appeal must be dismissed irrespective of the merits of the Appellant's challenge to its decision.
- In all of the authorities to which I have referred it was stated that the county court does have such jurisdiction. But none of them concerned demoted tenancies and none of them considered the effect of the statutory provisions applicable to them.
- In my judgment, those provisions are quite clear. Section 143D of the 1996 Act restricts the county court to considering whether the procedure under sections 143E and 143F has been followed. If the court concludes the procedure has not been followed, it will not make an order for possession. If it has been followed, it must make the order. I emphasise the word procedure. The court's review is limited to matters of procedure, and the county court cannot review the substance or rationality of the landlord's decision, or whether or not it is consistent with the tenant's or other occupiers' Convention rights.
- The judge considered that section 143N conferred the necessary jurisdiction. I disagree. Subsection (1) confers jurisdiction "to determine questions arising under this Chapter", but the only question that arises on a claim for possession of a dwelling-house let on a demoted tenancy is whether the statutory procedure has been followed. Subsection (1)(c) is concerned with monetary claims, and does not widen the jurisdiction expressly restricted by section 143D.
- I am encouraged in this conclusion by the possible consequences of the county court having jurisdiction to conduct a judicial review of a decision on the review conducted under the statutory procedure. The county court does not have jurisdiction to quash that decision. If, therefore, it found that the decision was legally defective applying the Doherty test or on other domestic judicial review grounds (for example, because an irrelevant consideration had been taken into account), it might have no alternative but to dismiss the claim for possession. The result would be, by section 143B(4)(b), that the demoted tenancy became a secure tenancy, even if the landlord, given an opportunity to reconsider its decision (which it clearly could do if the original decision were quashed), would again decide to seek possession and could do so quite lawfully.
- Section 143F(6) demonstrates that Parliament intended the review process to be speedy. If it is mandatory, any order quashing a landlord's decision to seek possession would be fatal to the possession claim. Mr Arden pointed out that in practice it was difficult, and was sometimes impossible, to complete the review procedure in any sensible time specified in a possession notice, and he submitted that it should be construed as directory. Mr Stilitz supported this submission, and Mr Drabble did not dissent from it. There is ample authority for the proposition that language akin to that in section 143F(6) should be construed as directory if the consequences of a mandatory interpretation are so unreasonable that they could not have been intended by Parliament. The appropriate question is whether it was a purpose of the legislative provision that an act done in breach of it should be invalid: see, e.g., R v Soneji [2005] UKHL 40 [2006] 1 AC 340. Applying this test, I agree that failure to comply with section 143F(6) should not of itself invalidate a review carried out under subsection (2).
- This conclusion is consistent with the authorities on the materially identically worded section 129(6) of the 1996 Act relating to the comparable introductory tenancies. In McDonagh v Salisbury District Council [2001] EWHC Admin 567 the initial review took place 9 days outside the relevant period, and a subsequent review (following judicial review proceedings) took place some seven months outside the period stipulated in section 129(6). Jackson J (as he then was) held at paragraph 46 that the failure to comply with the statutory time limit did not make the review decision a nullity because: (1) a variety of circumstances, not all of them within the local authority's control, might extend the review beyond the specified date; (2) the statute does not specify any consequence for non-compliance; (3) even the initial hearing had been outside the stipulated period, but no complaint had been made about that; and (4) if breach of section 129(6) made a review impossible, then the procedure for terminating introductory tenancies would become prolonged and repetitive. The first, second and fourth of these reasons apply equally to demoted tenancies. Similarly, in R (Chelfat) v London Borough of Tower Hamlets [2006] EWHC 313 (Admin) Sullivan J (as he then was) considered the same question at paragraphs 21 to 28. At paragraph 27 he held:
- In the present case, it was not suggested before the judge that the statutory procedure had not been followed, nor was it so suggested before us. It follows that the judge was obliged to make an order for possession. It also follows that this appeal must be dismissed.
- We heard full argument as to whether, if he had the necessary jurisdiction, the judge was entitled to uphold the review decision in this case. Although it is not strictly necessary for the disposal of this appeal to consider those arguments, I think it would be helpful to indicate my views.
- The decision of the review panel was susceptible of judicial review by the Administrative Court. As mentioned above, applying Doherty and the subsequent authorities to which I have referred, the grounds for judicial review are those applicable in domestic judicial review cases, save that the extended rationality test stated by Lord Hope in Doherty is to be applied. As Toulson LJ said in Doran, "the question whether the council's decision was one which no reasonable person would have made is to be decided by applying public law principles as they have been developed at common law, and not through the lens of the Convention."
- In the present context, where a court has found it reasonable to make a demotion order, in my judgment the Administrative Court should be cautious in the extreme before quashing a decision of a public landlord to obtain possession of a dwelling-house under a demoted tenancy. By way of example, it does not follow from the fact that one of the reasons set out in a possession notice was irrelevant that the decision to obtain possession was one that no reasonable person would have made.
- This leads me to consider what reasons may be given in a notice under section 143B(3). The Respondent Council and the judge assumed that it must be a breach of the tenancy agreement. I think that they were wrong to do so. A demotion order may be made even if there is no applicable express term of the tenancy or no relevant breach of an express term. What must be established is set out in section 82A(4) of the 1985 Act: anti-social behaviour by the tenant or a person residing in or visiting the dwelling-house, or a threat by them to engage in such behaviour, or their use of the dwelling-house for an unlawful purpose or a threat to do so.
- The Act requires to be specified in such a possession notice "the landlord's reasons for the landlord's decision to apply for the order". Mr Drabble submitted that the 1996 Act impliedly limits the landlord's reasons to those relating to the conduct of the tenant or of those residing with or visiting him. The correctness of this submission does not fall for decision on this appeal, in which the landlord's reasons did so relate, and I proceed on the basis that it is correct. Moreover, given the terms of the Recorder's judgment, it may well be that on the facts of this case the Council's reasons had to be confined to such conduct. However, I am not convinced that it is generally correct. The language of section 143E(2)(b) is very wide, and the contrast of its drafting with that of section 82A(4) of the 1985 Act must have been deliberate. If Parliament had intended to qualify the reasons for the landlord's decision, it could and would have done so. I refer to the observation of Baroness Hale in Kay at para 190 referred to at paragraph 42 above. My provisional view is that the reasons for the landlord's decision may be anything relevant to its management of its housing estate, provided, of course, that it arises or becomes known after the date of the demotion order and so could not have been taken into account when it was made. If there are relevant reasons that justify the decision (in the sense that it cannot be said that no reasonable person would make that decision for those reasons) the Court should not, in my judgment, normally quash the decision.
- I think it clear that, on a review under section 143F, the person or persons carrying out the review are entitled to take into account events that postdate the possession notice, provided that can fairly be done. It would be manifestly unjust if the tenant could not put forward subsequent events or information that are in his favour, and I do not see why the contrary should not be the case. What is to be determined on a review is not whether the landlord had at any relevant time a cause of action, but whether when the review is carried out the landlord has good reason to seek possession. It follows, in my judgment, that a review may lawfully decide to uphold a decision to seek possession even if all the matters referred to in the notice are found to be unfounded or irrelevant, if there has been other anti-social behaviour justifying a decision to obtain possession.
- The judge held that the incident on 22 September 2007, when Clive Pinnock at the property resisted arrest and ran off, could not have been properly be taken into account by the review panel, because there was no evidence that his conduct caused nuisance or annoyance to any person, other than the police officers, and it therefore did not constitute a breach of Mr Pinnock's tenancy agreement. His decision was understandable, given the terms of the possession notice and the Council's concession before the review panel that it had to establish a breach. But, as I have already stated, this concession was incorrect, and before the judge the Council had indeed contended that it was not necessary for it to establish a breach of the agreement.
- Even leaving the police out of account, Clive's conduct was "capable of causing nuisance or annoyance to any person", and it was relevant to the housing management functions of the Council. But I do not think that the judge should have left the police out of account: manifestly, Clive's conduct was for them an annoyance at the least. It must also be remembered that the panel were not conducting a trial, and their reasons should not be scrutinised as if they were doing so. They had to decide whether to confirm the decision to obtain possession: hence it was sufficient that the conduct in question was capable of causing nuisance or annoyance to any person.
- The most serious incident referred to in the possession notice was the death by dangerous driving committed by Devon Pinnock. There was an issue before the panel whether he was then residing at the property. Mr Pinnock's evidence was that he had moved out and had resided in Levenshulme with his girlfriend some 4 or 5 years previously. As mentioned above, that evidence had been rejected by the Recorder, not surprisingly since Devon had given the property as his address when arrested in July 2005, when pleading guilty at court in June 2006, and when arrested and bailed in March 2007. When he appeared in court on the charge of causing death by dangerous driving in January 2008 he again gave his address as 65 Meldon Road. The only new evidence before the review panel disputing his residence at the property was a statement of the mother of his girlfriend, but she too said that he had ceased to live at the property 4 or 5 years previously. In these circumstances, it would be difficult to conclude that he did not reside there, but I agree with the judge that the review panel ducked the issue of residence in their written decision.
- But this did not mean that the incident was irrelevant. Ms Walker's blaming of the police for the incident bore on whether she and Mr Pinnock were able and willing to exercise parental control over their children who lived at or visited the property so as to bring their anti-social behaviour to an end: cf. paragraph 29.30 of the Recorder's judgment. The judge should not have treated the panel's reference to Ms Walker's behaviour as irrelevant.
- Lastly, the burglary committed by Orreon of which he was convicted after the service of the possession notice was clearly relevant.
- In these circumstances, I cannot see any basis for a finding that the review panel's decision was one that no reasonable person could consider appropriate, and if the judge had had jurisdiction to review that decision I would have upheld his decision to uphold it, albeit for different reasons.
- I agree.
- I also agree.
Lord Justice Stanley Burnton :
Introduction
The statutory framework
82A Demotion because of anti-social behaviour
(1) This section applies to a secure tenancy if the landlord is—
(a) a local housing authority;
(b) a housing action trust;
(c) a registered social landlord.
(2) The landlord may apply to a county court for a demotion order.
(3) A demotion order has the following effect—
(a) the secure tenancy is terminated with effect from the date specified in the order;
(b) if the tenant remains in occupation of the dwelling-house after that date a demoted tenancy is created with effect from that date;
(c) it is a term of the demoted tenancy that any arrears of rent payable at the termination of the secure tenancy become payable under the demoted tenancy;
(d) it is also a term of the demoted tenancy that any rent paid in advance or overpaid at the termination of the secure tenancy is credited to the tenant's liability to pay rent under the demoted tenancy.
(4) The court must not make a demotion order unless it is satisfied—
(a) that the tenant or a person residing in or visiting the dwelling-house has engaged or has threatened to engage in—
(i) housing-related anti-social conduct, or
(ii) conduct to which section 153B of the Housing Act 1996 (use of premises for unlawful purposes) applies, and
(b) that it is reasonable to make the order.
(5) Each of the following has effect in respect of a demoted tenancy at the time it is created by virtue of an order under this section as it has effect in relation to the secure tenancy at the time it is terminated by virtue of the order—
(a) the parties to the tenancy;
(b) the period of the tenancy;
(c) the amount of the rent;
(d) the dates on which the rent is payable.
(6) …
(7) If the landlord of the demoted tenancy serves on the tenant a statement of any other express terms of the secure tenancy which are to apply to the demoted tenancy such terms are also terms of the demoted tenancy.
(7A) In subsection (4)(a) "housing-related anti-social conduct" has the same meaning as in section 153A of the Housing Act 1996.
(8) …
(1) In this section -
"anti-social conduct" means conduct which is capable of causing nuisance or annoyance to some person (who need not be a particular identified person);
"conduct" means conduct anywhere;
"housing-related" means directly or indirectly relating to or affecting the housing management functions of a relevant landlord.
143B Duration of demoted tenancy
(1) A demoted tenancy becomes a secure tenancy at the end of the period of one year (the demotion period) starting with the day the demotion order takes effect; but this is subject to subsections (2) to (5).
(2) …
(3) If at any time before the end of the demotion period the landlord serves a notice of proceedings for possession of the dwelling-house subsection (4) applies.
(4) The tenancy continues as a demoted tenancy until the end of the demotion period or (if later) until any of the following occurs—
(a) the notice of proceedings is withdrawn by the landlord;
(b) the proceedings are determined in favour of the tenant;
(c) the period of 6 months beginning with the date on which the notice is served ends and no proceedings for possession have been brought.
(5) A tenancy does not come to an end merely because it ceases to be a demoted tenancy.
…
143D Proceedings for possession
(1) The landlord may only bring a demoted tenancy to an end by obtaining an order of the court for possession of the dwelling-house.
(2) The court must make an order for possession unless it thinks that the procedure under sections 143E and 143F has not been followed.
(3) If 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.
143E Notice of proceedings for possession
(1) Proceedings for possession of a dwelling-house let under a demoted tenancy must not be brought unless the landlord has served on the tenant a notice of proceedings under this section.
(2) The notice must—
(a) state that the court will be asked to make an order for the possession of the dwelling-house;
(b) set out the reasons for the landlord's decision to apply for the order;
(c) specify the date after which proceedings for the possession of the dwelling-house may be begun;
(d) inform the tenant of his right to request a review of the landlord's decision and of the time within which the request must be made.
(3) The date specified under subsection (2)(c) must not be earlier than the date on which the tenancy could (apart from this Chapter) be brought to an end by notice to quit given by the landlord on the same date as the notice of proceedings.
(4) The court must not entertain proceedings begun on or before the date specified under subsection (2)(c).
(5) The notice must also inform the tenant that if he needs help or advice—
(a) about the notice, or
(b) about what to do about the notice,
he must take the notice immediately to a Citizen's Advice Bureau, a housing aid centre, a law centre or a solicitor.
143F Review of decision to seek possession
(1) Before the end of the period of 14 days beginning with the date of service of a notice for possession of a dwelling-house let under a demoted tenancy the tenant may request the landlord to review its decision to seek an order for possession.
(2) If a request is made in accordance with subsection (1) the landlord must review the decision.
(3) The Secretary of State may by regulations make provision as to the procedure to be followed in connection with a review under this section.
(4) The regulations may include provision—
(a) requiring the decision on review to be made by a person of appropriate seniority who was not involved in the original decision;
(b) as to the circumstances in which the tenant is entitled to an oral hearing, and whether and by whom he may be represented at the hearing.
(5) The landlord must notify the tenant—
(a) of the decision on the review;
(b) of the reasons for the decision.
(6) The review must be carried out and notice given under subsection (5) before the date specified in the notice of proceedings as the date after which proceedings for possession of the dwelling-house may be begun.
143N Jurisdiction of county court
(1) A county court has jurisdiction—
(a) to determine questions arising under this Chapter;
(b) to entertain proceedings brought under this Chapter;
(c) to determine claims (for whatever amount) in connection with a demoted tenancy.
(2) The jurisdiction includes jurisdiction to entertain proceedings as to whether a statement supplied in pursuance of section 143M(4)(b) (written statement of certain terms of tenancy) is accurate.
(3) For the purposes of subsection (2) it is immaterial that no relief other than a declaration is sought.
(4) If a person takes proceedings in the High Court which, by virtue of this section, he could have taken in the county court he is not entitled to recover any costs.
(5) …
(6) …
(7) …
153A Anti-social behaviour injunction
(1) In this section—
…
"anti-social conduct" means conduct capable of causing nuisance or annoyance to some person (who need not be a particular identified person);
"conduct" means conduct anywhere;
"housing-related" means directly or indirectly relating to or affecting the housing management functions of a relevant landlord.
The facts
"29.27 I have reached a firm conclusion having regard to reasonableness, proportionality and decided case law that an immediate possession is not appropriate in this case. That would be a truly draconian course of action bearing in mind the length of the tenancy and Mr Pinnock's blameless life looked at from his own lack of direct involvement in criminal activity.
29.28 Mr Manning has argued that before the Court can order a suspended possession order there must be a sound basis for thinking that the behaviour or Orreon and/or Orraine and/or Devon will not deteriorate as it has done before. Also the Court would have to be confident that Mr Pinnock and Christine Walker were prepared to exercise parental control. I agree with that analysis.
29.29 Bearing in mind my findings of fact it seems to me that the most appropriate course in this case is to make a Demotion of Tenancy order in favour of the Claimant. The consequences of this for Mr Pinnock will undoubtedly be serious and I agree it is a draconian step, but it is a step which is entirely justified by the evidence.
29.30 In my judgment the Pinnock family has now reached a significant watershed in their lives. Mr Pinnock and Christine Walker are not powerless and need to face up to their own responsibilities.
It is now up to them to exercise parental control over their three sons who have caused people living in the neighbourhood difficulties and upset and also difficulty to them as parents.
They need to impress on their sons that the situation is now critical and unless they behave in a socially responsible manner and avoid all criminal and anti-social behaviour then there is a strong likelihood that their parents will lose their home.
29.31 Applying the criteria of "reasonableness" I am satisfied that a demotion of tenancy order is the most appropriate order and that compliance with the order is entirely within Mr Pinnock's and Christine Walker's own hands. I am not impressed by the suggestion made by Mr Durance that something might happen during the period of demotion that is outside their direct control as this seems to suggest that something might happen. I am satisfied that Mr Pinnock and Christine Walker if they are prepared to be strong and lay down clear rules for their sons are quite capable of influencing them so they don't act in an anti-social manner.
By making an order for demotion of the tenancy of 65 Meldon Road I am giving Mr Pinnock and his family a last chance to become law abiding citizens.
29.32 Mr Pinnock and Christine Walker should be under no illusion as to the very serious consequences for them in relation to the occupation of 65 Meldon Road if there are further significant acts of anti-social behaviour. If things have genuinely improved they have nothing to fear but if there remains a potential for further anti-social behaviour then they need to act to protect Mr Pinnock's tenancy.
Mr Pinnock and Miss Walker and their sons should be in absolutely no doubt that if there is further conduct of the sort that took place in the period May 2005 to October 2006 then there will be a strong probability the Claimant will seek immediate possession of the Demoted Tenancy on the grounds that there have been further breaches of the terms and conditions of the tenancy."
"4.1 You are responsible for the behaviour of every person (including children) living in or visiting your home. You are responsible in your home, on surrounding land, in communal areas (stairs, lifts, landing, entrance halls, paving, shared gardens, parking areas) and in the locality around your home.
4.2 You (or anyone living with you, or visiting your home) must not cause a nuisance, annoyance or disturbance to any other person. Examples of nuisance, annoyance or disturbance include: loud music; arguing and door slamming; dog barking and fouling; offensive drunkenness; selling drugs or drug abuse; rubbish dumping; playing ball games close to someone else's home.
4.3 You (or anyone living with you, or visiting your home) must not harass any other person. Examples of harassment include: racist behaviour or language; using or threatening to use violence; using abusive or insulting words or behaviour; damaging or threatening to damage another persons home or possessions; writing threatening, abusive or insulting graffiti; doing anything that interferes with the peace, comfort or convenience of others."
"(1) On 22nd September 2007, the Tenant's son, Clive Pinnock whilst at the property caused a nuisance, annoyance and disturbance, by resisting and/or obstructing a Police Constable. (It is understood that on 19th December 2007, Clive Pinnock was convicted of the related Criminal Offence in this regard).
(2) On 18th January 2008, the Tenant's son Devon Pinnock caused nuisance, annoyance and disturbance by causing death by dangerous driving and driving a vehicle whilst disqualified and uninsured. This very serious offence took pace in the locality of the property and in or around the junction of Burnage Lane and Mauldeth Road in Manchester. (It is understood that Devon Pinnock has pleaded guilty to the related offence at Court)."
The italics were in the original. The notice informed the Appellant of his right to seek a review. He does not suggest that the notice was formally defective.
The panel heard of a catalogue of crime and anti-social behaviour perpetrated by your sons and the impact that has had on the community. The panel also heard details of the more recent serious incidents that had been committed by your sons and which have led to the request being made to terminate your tenancy.
In making this decision the panel needed to be satisfied that you had breached your tenancy agreement as outlined in sections (1) and (2) of the Particulars of Breach.
The panel heard evidence from Police Inspector Forster and Rebecca Bryant that these incidents had occurred and your sons Clive and Devon had been convicted of a burglary which involved assault and is currently bailed to 65 Meldon Road awaiting sentencing.
All of these incidents occurred in or around your tenancy and have clearly caused nuisance, annoyance and serious harm to people in the local community.
In your defence you stated that your sons no longer live at the address, however, it is clear that it remains the family home where your sons return on a frequent basis.
Christine Walker blamed the Police for the car crash in which a young woman died and two others were seriously injured caused by your son Devon. Clearly Devon was responsible by behaving in a reckless manner and breaking the law whilst driving whilst disqualified. The panel felt that this clearly demonstrated that both you and your partner have failed to address your responsibilities as parents. Furthermore, you both appear to refuse to accept the seriousness of your sons' behaviour and that they choose to behave in an anti social manner rather than being the victims of others.
The City Council has, over the years, used a range of warnings, interventions and legal action in an effort to address this behaviour, all of which have been unsuccessful.
The panel felt that you and your partner had many opportunities to engage positively in work with agencies to prevent your son from continuing to engage in anti social behaviour, this you failed to do and your sons' behaviour has over the years escalated to a serious degree. They continue to pose a serious risk to the local community therefore the panel believe that your tenancy should be terminated to protect the community from further harm.
(a) The procedure for termination of demoted tenancies is incompatible with Article 6 of the European Convention on Human Rights.
(b) There had not been a breach of the tenancy agreement. Clive did not live at the property and the September 2007 incident was not a breach of clause 4.2; Devon did not live there, so the car crash was immaterial.
(c) The decision to recover possession was an improper exercise of the Council's discretion. The decision did not respect but infringed Mr Pinnock's Article 8 rights.
(d) The procedure for review had not been lawfully followed.
(a) He was precluded from considering whether the statutory procedure complied with Article 6 by the decision of the Court of Appeal in R (Gilboy) v Liverpool City Council [2008] EWCA Civ 751, in which it was held to be Article 6 compliant, and in any event by the fact that only the High Court has jurisdiction to declare a statutory provision to be incompatible.
(b) He did have jurisdiction to review the decision, on the grounds that section 143N(1)(a) conferred that jurisdiction, and that the decisions of the House of Lords in Kay v Lambeth London Borough Council [2006] UKHL 10, [2006] 2 AC 465 and Doherty v Birmingham City Council [2008] UKHL 57 [2008] 3 WLR 636 [2009] 1 AC 367 were authority for his having that jurisdiction.
(c) His jurisdiction did not extend to resolving factual disputes, but was confined to a conventional judicial review, by which he meant a review that did not include consideration of the Convention rights (and specifically those under Article 8) relied on by Mr Pinnock.
The panel, I conclude, ducked the issue of residence by asserting that the property remained the family home where the sons returned frequently. …. the panel focussed on the criminal activity of the sons without considering whether it involved a breach of the Defendant's obligations under the tenancy agreement.
"…There was evidence before the panel of Christine Walker seeking to exculpate Devon by blaming the police for the car crash. This ties in the Recorder Donovan's view at paragraph 29.24: "She has a strong unjustified sense that her sons have been and are being victimised. She has sought to excuse or make light of her sons' criminal behaviour"."
"70. Earlier in my judgment, I referred to a demotion order being a sort of probation. I have since noticed that Waller LJ in Gilboy used the same terminology at paragraph 51 and he refers to tenants being "on their last chance". The reason for the decision to terminate does not have to be related to the reason for the original demotion order, but in this case it was, and I am satisfied that there was material before the review panel (as set out in my previous paragraph) entitling it to uphold the decision to terminate.
71. Whilst I appreciate that it bears hard on the Defendant given the length of his tenancy and his blameless personal life, the statute obliges me in these circumstances to order him to give possession of the property. "
The contentions of the parties on this appeal
(a) The statutory procedure is incompatible with Article 6 of the European Convention on Human Rights: the decision on review is not that of an independent or impartial tribunal, and it is not the subject of scrutiny by a court of full jurisdiction.
(b) In order for the review panel's decision to comply with Article 8 of the Convention and section 6 of the Human Rights Act 1998, and in particular Article 8.2, it was necessary for it to be a proportionate response to his children's misconduct.
(c) The panel had not considered proportionality and the decision was not a proportionate response. It had not been necessary to seek the eviction of the Appellant, given the alternative measures that were available to the Council, including injunctive relief and ASBOs and exclusion orders against the children. Moreover, the panel had not taken into account the fact that Devon had received a custodial sentence on his conviction for causing death by dangerous driving, that Orreon was sure to be sentenced to a period in custody; and since Clive was not resident at the property, the Appellant's eviction would be irrelevant to his conduct.
(d) The county court judge had correctly held that he had jurisdiction to review the panel's decision.
(e) The basis of review should have been proportionality: did the decision of the review panel satisfy the requirement of proportionality under Article 8.2? The judge had wrongly confined his review to an English domestic law review and had not considered proportionality under Article 8. If he had done so, he would have had to conclude that the decision to evict the Appellant was not proportionate; in any event, since the panel had not considered proportionality, its decision could not have been upheld.
(f) Alternatively, if the review was restricted to the domestic bases of judicial review, in the circumstances of this case it was in practice indistinguishable from the test of proportionality and should have had the like result.
(g) Although the panel and the county court were entitled to have regard to events after the date of the possession notice, the claim for possession depended on at least one of the matters relied upon by the Council in its possession notice being upheld. None was. It followed that the judge should have dismissed the claim.
(h) Even applying conventional judicial review principles, the judge had applied an incorrect test for the review of the panel's decision. Having held that the panel had incorrectly taken into account the incidents alleged in the notice, he had to hold that the decision was unlawful and to dismiss the claim for possession. Instead, he substituted his decision for that of the panel by holding that, "there was material before the review panel … entitling it to uphold the decision to terminate." The judge could not have been sure that if the only breach of the tenancy agreement was the burglary committed by Orreon, the panel would necessarily have upheld the decision to seek possession.
(i) It followed that the appeal should be allowed.
(a) The review panel had not been required to consider the Article 8 rights of the Appellant. His qualified rights under Article 8.1 were the subject of Article 8.2, and had been taken into account by the provisions of the legislation.
(b) The judge did not have jurisdiction to review the panel's decision on judicial review grounds: his jurisdiction was expressly limited to determining whether the statutory procedure had been followed.
(c) Any review of the substance of the panel's decision could only be by way of judicial review proceedings in the Administrative Court.
(d) The panel had been entitled to take into account the burglary committed by Orreon although the conviction postdated the notice of 6 June 2008.
(e) Properly construing their decision, the panel had found that Devon was residing at the property when he committed the offence of causing death by dangerous driving. In any event, on the basis of the finding of Recorder Scott Donovan, which was res judicata, it was clear that he was residing there.
(f) In any event, it had not been necessary for the Council to establish that there had been breaches of the tenancy agreement.
(g) It followed that all of the matters mentioned in the panel's decision were, contrary to the judge's findings, properly taken into account by them, and they were entitled to make the decision to evict the Appellant.
(h) It followed that the appeal should be dismissed.
Discussion
(a) Preliminary
(b) The authorities binding on this Court
34. Under some statutory regimes, as where discretionary grounds are relied on to terminate a secure tenancy under the Housing Act 1985, the court may make an order for possession only where, other conditions for making such an order being met, the court thinks it reasonable to do so. This enables the court to take account of all circumstances which it judges to be relevant. If, in any case covered by such a regime, the statutory conditions are satisfied and the court does, on consideration of all the circumstances, think it reasonable to make a possession order, the court will in effect have undertaken the very assessment which article 8(2) requires. In such a situation article 8(2) adds nothing of substance to the protection which the occupier already enjoys.
35. Under some statutory regimes the court may be required to make an order for possession if certain prescribed conditions are met and there is no overriding requirement that the court considers it reasonable or just to make such an order. The statutory scheme is nonetheless likely to satisfy the article 8(2) requirement of proportionality if it is clear that the statutory scheme represents a democratic solution to the problems inherent in housing allocation. Thus in Poplar Housing and Regeneration Community Association Limited v Donoghue [2001] EWCA Civ 595, [2002] QB 48, the Court of Appeal found no breach of article 8(2) in the use of section 21(4) of the Housing Act 1988, as amended, to gain possession of an assured shorthold tenancy granted to a person who had been intentionally homeless, because (para 69) Parliament had intended to give preference to the needs of those dependent on social housing as a whole over those who, like the tenant, had been intentionally homeless. Similarly, in R (McLellan) v Bracknell Forest Borough Council [2001] EWCA Civ 1510, [2002] QB 1129, the Court of Appeal found no breach of article 8 where a housing authority determined the introductory tenancies of tenants whose rent was in arrears under section 127(2) of the Housing Act 1996, since (para 63) Parliament had decided that it was necessary in the interest of tenants generally and the local authorities to have a scheme whereby, during the first twelve months, tenants were on probation and could be evicted without long battles in the county court, there being (it was held) adequate procedural safeguards. The Court of Appeal took a similar approach when holding, in Sheffield City Council v Smart [2002] EWCA Civ 4, [2002] HLR 639, para 37, that Parliament clearly enacted the relevant statutory provisions upon the premise that while a tenant is housed as a homeless person he enjoys no security of tenure. See also Wandsworth London Borough Council v Michalak [2002] EWCA Civ 271, [2003] 1 WLR 617, paras 63, 78. Where a statutory scheme covers the case of an occupier, and conditions are prescribed for obtaining possession, and those conditions are met, it will only be in highly exceptional circumstances that the occupier will gain additional protection from article 8.
53. The starting point is clear enough. A possession order made by a court in respect of a defendant's home will be, at least ordinarily, an interference with the defendant's right to respect for his home within the meaning of article 8. Equally clearly, in almost all cases of the two types mentioned above that interference will be justified as 'necessary in a democratic society' on one or more of the grounds set out in article 8(2). The interference will be justified because in one case the defendants never had any right to be on the property at all. In the other case the defendants had only the limited rights afforded by the housing legislation. This complex, ever-changing law is testimony to the elaborate steps taken by Parliament to strike an appropriate balance between the competing interests of all those who are in need of homes. The country's housing stock is finite, and for many years the legislature has striven repeatedly to achieve the best and fairest use of the available housing. Parliament's decisions on this extremely difficult and intricate social problem are to be respected.
54. I said 'in almost all cases' because inevitably there may be the exceedingly rare case where the legislative code or, indeed, the common law is impeachable on human rights grounds. Connors v United Kingdom (2005) 40 EHRR 9, regarding the lack of protection for gypsies, is an example. It is this possibility, rare and exceptional though it may be, which gives rise to a hugely important practical problem. Day in, day out, possession orders are routinely made in county courts all over the country after comparatively brief hearings. The hearings are mostly brief because the time needed to dispose fairly of the formalities and also of questions of reasonableness, where they arise, is usually short. This will no longer be the position if, as has been contended, local authorities must now plead and prove in every case that domestic law meets the requirements of article 8.
55. I am unable to accept this remarkable contention. The course proposed would be a recipe for a colossal waste of time and money, in case after case, on futile challenges to the Convention-compatibility of domestic law. On the contrary, despite the possibility of a successful challenge under article 8, I see no reason for the present practice to change. Courts should proceed on the assumption that domestic law strikes a fair balance and that it is compatible with the requirements of article 8 and also article 1 of the first protocol.
108. … There will be some cases of a special and unusual kind, of which Connors is an example, where the interference with the right to respect for the home which results from the making of a possession order will require to be justified by a decision-making process that ensures that "some special consideration" (the words used in Connors, para 84) is given to the interests safeguarded by article 8. If there is such a defect the law will need to be amended to provide the necessary safeguards. But there will be many other cases where there are no such special circumstances - where the person's right to occupy the premises as his home has simply been brought to an end by the operation of law and his eviction is necessary to protect the rights under the law of the landowner. In these cases it is enough that the eviction is in accordance with what the law itself requires as the case of Blecic, in which it was held that the requirements of the law had been satisfied, demonstrates. Further consideration of the interests safeguarded by article 8 will be unnecessary. Cases where the home was occupied under a tenancy, or some other interest falling short of a tenancy, which has been brought to an end in accordance with the relevant law, as in Qazi, will fall into this category. The interests safeguarded by article 8 will be sufficiently protected by the fulfilment of the formal requirements for the eviction laid down by the relevant statute or by the common law.
109. The contrary conclusion, for which the appellants contend, is that procedures must exist in the domestic system for a consideration of the interests safeguarded by article 8 in every case where a person is evicted from his home by the making of a possession order. A requirement that the article 8 issue must be considered by the court in every case by taking into account the defendant's personal circumstances would go further than a reading of these three cases, taken together and in the light of the prior Strasbourg jurisprudence, will justify. It would breach Lord Bingham's "no more and no less" rule. The extent and consequences of this breach should not be underestimated. It would drive a deep wedge into the domestic system for the handling of possession cases and would be a colossal waste of time and money, as Lord Nicholls indicates. So I agree with him that judges in the county courts, when faced with such a defence, should proceed on the assumption that domestic law strikes a fair balance and is compatible with the occupier's Convention rights.
110. But, in agreement with Lord Scott, Baroness Hale and Lord Brown, I would go further. Subject to what I say below, I would hold that a defence which does not challenge the law under which the possession order is sought as being incompatible with the article 8 but is based only on the occupier's personal circumstances should be struck out. I do not think that McPhail v Persons, Names Unknown [1973] Ch 447 needs to be reconsidered in the light of Strasbourg case law. 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, 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, he should be permitted to do this provided again that the point is seriously arguable: Wandsworth London Borough Council v Winder [1985] AC 461. The common law as explained in that case is, of course, compatible with article 8. It provides an additional safeguard.
The italics are mine.
180. … we are all agreed that in the vast majority of cases, the right of a public landowner to enforce a claim to possession of his own land in accordance with the relevant domestic law would automatically supply the justification required by article 8(2) for an interference with the occupier's right to respect for his home. By definition, it would be "in accordance with the law"; it would serve the legitimate aim of protecting the property rights of the landowner and in some cases the rights of neighbouring occupiers; and it would be proportionate to that aim, the proper balance between the competing rights having been struck by Parliament: see Lord Bingham at paras 35, 36. If that is so, in most cases, granting a possession order in accordance with the domestic law would be the only means available of protecting the right which the landowner wished to assert, and thus could not be disproportionate in the individual case.
181. Thirdly, we are all agreed that there can be no question of requiring the public landowner to plead and prove individual justification for that interference in every case: see Lord Bingham at para 29. This was Mr Luba's bold submission to us on behalf of the occupiers in these cases. He was right to make that submission, as he recognised that it was the logical consequence of the case which he was putting forward: that the analysis adopted by the Strasbourg court in the cases found admissible should also be adopted in county and sheriff courts up and down the land when considering any claim for the possession of premises where a person lives. Is it the defendant's home? Will the order interfere with his right to respect for that home? Is that interference in accordance with the law? Does it serve a legitimate aim? Is the interference "necessary in a democratic society", ie proportionate to the legitimate aim pursued?
203. Of course, where the domestic law requires the court to make a judgment (most notably perhaps in those cases under Schedule 2 to the Housing Act 1985 where repossession can only be ordered if the court considers it reasonable), or to exercise a discretion, the judge will bear in mind that he is performing this task in the context of the defendant's article 8 right to respect for his home. But where under domestic law the owner's right to possession is plainly made out (whether at common law or, for example, under the legislation providing for assured short-hold tenancies or introductory tenancies), the judge in my opinion has no option but to assume that our domestic law properly strikes the necessary balances between competing interests (as envisaged in paras 32 and 33 of my noble and learned friend Lord Bingham's judgment) and that in applying it properly he is accordingly discharging his duty under section 6 of the Human Rights Act 1998. Where section 89 of the Housing Act 1980 applies, the judge will to that extent have a discretion to postpone possession. That apart, however, he has no discretion and the order must be made, leading to the eventual execution of the warrant for possession. Where no statutory protection is afforded to occupiers that should be assumed to be Parliament's will: sometimes that will be clearly evident from the terms of the governing legislation (as in the cases considered by Lord Bingham in para 35); even, however, where the owner's rights arise at common law, the absence of statutory protection must surely be, as my noble and learned friend Lord Hope suggests, the result of a deliberate decision by Parliament to leave the owner's right to recover possession in these cases unqualified. As Lord Bingham observes at para 36, it is not unrealistic to regard the general law as striking the required balance.
37. In many respects the background to this case is the same as in Connors. Here too a local authority has an unqualified right to possession in terms of the statutes. Here too the occupier against whom the order is sought is a gipsy together with members of his family, all of whom are gipsies. Here too the plot of which the appellant is the occupier is on a gipsy and travellers' caravan site. The appellant and his family have been in occupation of the site for many years. The period was about 16 years in Connors. In this case the period is about 17 years. The legal framework on the date when the possession order was made, both under statute and at common law, is the same. As in Connors, that framework was designed by Parliament. No statutory protection is available, with the result that the landowner's right to recover possession is unqualified. The respondent's decision to exercise that right could not have been held to have been unlawful within the meaning of section 6(1) of the Human Rights Act 1998 as it was acting so as to give effect to the provisions of the statute: see section 6(2)(b) of that Act. To hold otherwise would conflict with the intention of Parliament.
38. Mr Luba and Mr Sales submitted that section 6(2)(b) of the 1998 Act did not apply to this case. This was because the effect of the statutes was that the protections that were available to others did not extend to sites on local authority land that were occupied by gipsies. So the court was simply applying the common law when it made the possession order. I would reject that argument. What we have here is a scheme for the management of caravan sites belonging to local authorities that has been laid down by statute. The effect of that scheme, when read as a whole, is to provide protection in some cases which in other cases is not available. Where cases are found to be outside that protection, as they are in the case of gipsies, this is because Parliament has decided that in those cases the protection should not be available. It is, of course, true that where the protections are not available the effect is that the contractual method of recovering possession that the common law provides is unqualified. But that is the result not of the common law but because Parliament has decided to make it so.
39. The cases in which the effect of section 6(2)(b) of the 1998 Act has been considered so far demonstrate that three distinct situations may arise. The first is where a decision to exercise or not to exercise a power that is given by primary legislation would inevitably give rise to an incompatibility. That was the situation in R v Kansal (No 2) [2002] 2 AC 69, as Moses J observed in R (Wilkinson) v Inland Revenue Commissioners [2002] STC 347, para 41. The prosecutor's decision to adduce evidence of the answers which had been obtained under compulsion pursuant to section 433 of the Insolvency Act 1986 was bound to result in a breach of article 6 of the Convention. The second, which lies at the opposite end of the spectrum, is where the act or omission of the public authority which is incompatible with a Convention right is not touched by one or more provisions of primary legislation in any way at all. As the matter is not to any extent the product of primary legislation, the sovereignty of Parliament is not engaged. The act or omission will be unlawful under section 6(1) because section 6(2)(b) does not apply to it. The third situation lies in the middle. This is where the act or omission takes place within the context of a scheme which primary legislation has laid down that gives general powers, such as powers of management, to a public authority. That is the situation in this case. The answer to the question whether or not section 6(2)(b) applies will depend on the extent to which the act or omission can be said to be giving effect to any of the provisions of the scheme that is to be found in the statutes.
40. Guidance as to how the third situation is to be approached was given in R (Hooper) v Secretary of State for Work and Pensions [2005] UKHL 29; [2005] 1 WLR 1681, with which the House's decision in R (Wilkinson) v Inland Revenue Commissioners [2005] UKHL 30; [2005] 1 WLR 1718 should also be read. My noble and learned friend Lord Walker of Gestingthorpe has very helpfully quoted the relevant passages from Hooper, so I do not need to repeat them. The important point, as Lord Hoffmann explained in paras 48 and 49, is that section 6(2)(b) assumes that the public authority could have acted differently but excludes liability if it was giving effect to a statutory provision which could not be read in a way that was compatible with the Convention rights. It protects a decision to exercise or not to exercise a discretion that is available to it under the statute. It seems to me, looking at the statutory scheme as a whole that applies to this case, that this is indeed what the respondent was doing when it decided to apply for a possession order. It was exercising its powers of management under section 24 of the 1960 Act when it decided to terminate the appellant's contract. It is true that it was making use of the method which the common law provides for doing this, but this was because the statutory scheme permitted it to do so. Public authorities which make use of the common law in the exercise of their statutory powers of management are in no less favourable a position under that section 6(2)(b) than they would have been had their powers been derived entirely from statute: see my own opinion in Hooper, para 83.
52. … the speeches in Kay show that the route indicated by this gateway is limited to what is conveniently described as conventional judicial review. In para 60, for example, Lord Nicholls indicated that he had in mind a challenge in accordance with Wandsworth Borough Council v Winder [1985] AC 461 on grounds which, he said, had nothing to do with the Human Rights Act 1998. In para 208 Lord Brown too acknowledged that this was a quite different basis from that which the Act provides upon which a public authority's claim for possession could be challenged. In para 110 of my own speech I described this as a challenge that would be made at common law, on the ground that the decision was one that no reasonable person would consider justifiable. In para 114 I said that the grounds on which the decision to claim possession could be judicially reviewed were whether it was arbitrary, unreasonable or disproportionate.
53. Gateway (b) then asserts that in possession cases brought by a public authority a defence which takes the form of a challenge to its decision to seek possession may be available. The court is not bound to make the order if the decision to seek it can be challenged on the ground that it was an improper exercise of the respondent's powers. In this respect the two routes, or "gateways", may be said to work together to address the incompatibility due to the lack of a procedural safeguard, which is the fundamental point that is at issue in this case. Gateway (a) addresses the question whether the court can read and give effect to the statutes in a way that is compatible with article 8. If it cannot do this, it 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. This route offers a procedural protection under the common law. If taken, it will enable the grounds on which the respondent based its decision to be scrutinised. It might, on the facts of this case, provide the appellant with an effective defence to the making of the possession order. The fact that it is available as a defence seems to me to strengthen the argument, should it be needed, that it also provides him with the protection which he seeks against an infringement of his Convention right.
54. The Court of Appeal said in para 61 that it could see no purpose in remitting the case to the judge. I disagree, with respect, with this assessment. In para 43 of his judgment the 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. 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 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.
The italics are again mine.
48. As I see it, the effect of Doherty is two fold.
49. First, there is no formulaic or formalistic restriction of the factors which may be relied upon by the licensee in support of an argument that the council's decision to serve a notice to quit, and seek a possession order, was one which no reasonable council would have taken. Such factors are not automatically irrelevant simply because they may include the licensee's personal circumstances, such as length of time of occupation. In Doherty, where the family had been in occupation for a substantial time without causing any trouble, but the council wanted to use the site in a different way, it might also be thought relevant whether the council had taken any steps to offer the family, or help them to acquire, alternative accommodation.
50. Secondly, the question whether the council's decision was one which no reasonable person would have made is to be decided by applying public law principles as they have been developed at common law, and not through the lens of the Convention.
51. There is no conflict between these two propositions, which should be capable of being applied without additional complexity. As Baroness Hale observed in Kay at para 190, in a passage cited by Lord Walker in Doherty at para 108:
"It should not be forgotten that in an appropriate case, the range of considerations which any public authority should take into account in deciding whether to invoke its powers can be very wide: see R v Lincolnshire County Council ex parte Atkinson (1995) 8 Admin LR 529; R (Casey) v Crawley Borough Council [2006] EWHC 301 (Admin)."
52. Having said that the question whether the council's decision was unreasonable has to be decided by applying public law principles as they have been developed at common law, it is to be remembered that those principles are not frozen. Even before the enactment of the HRA, our public law principles were being influenced by Convention ways of thinking. Since its enactment, the process has gathered momentum. It is now a well recognised fact that the Convention is influencing the shape and development of our domestic public law principles, whether one uses the metaphors of embedding, weaving into the fabric, osmosis or alignment. (See the judgment of Lord Walker in Doherty at para 109.)
38. How then do I suggest a judge in the county court should approach a case such as the present in the light of Kay as explained in Doherty? The fact that the correct forum for judicially reviewing a decision of the local authority is the county court is important, not only because it follows that the procedural requirements of Article 8 are complied with, i.e. the question whether someone is to lose their home is reviewed by a court – an independent tribunal, but also because, although there is a distinction between a defence raising Article 8 rights directly for decision by the court and the question whether the council as a public authority has made a lawful decision in the light of an occupier's Article 8 rights, that distinction has, very largely, become academic. That will be so in my view whether my suggestion in paragraphs 39 to 41, as to what decision should be the subject of review, is acceptable or not.
39. I would accept that the likely assumption of the majority in Kay was that the relevant decision that could be the subject of judicial review was the original decision to seek possession. Furthermore, Toulson LJ was of the opinion in Doran that the court should not engage in a retrospective exercise by examining the facts as they are now found to be and asking whether the decision on those facts would have been lawful. [See paragraph 57 to 60]. He was also of the view that the remission in Doherty was for the purpose of examining the facts known to the public authority when it made its original decision. I respectfully suggest that there is a difficulty with this approach having regard to the fact that in these cases the burden is on the occupier to raise the circumstances on which he relies and because the approach perhaps does not recognise the possibility that a public authority may make a series of decisions in the light of the facts as they appear. If one looks at it on the basis that, once the public authority knows facts that it has not known up until they are revealed, the public authority is bound to take a further decision that avoids the concept of an exercise in retrospectivity.
40. An authority such as the council in the instant appeals may make a decision on the facts as known to it to send a letter seeking possession. Prima facie it has no obligation to find out what the true facts are and the burden is going to be on the occupier to demonstrate any grounds relied on as providing an Article 8 defence. If the occupier informs the public authority of relevant circumstances, the public authority will have to take a further decision as to whether to commence proceedings. If no letter is received and the facts are only divulged just prior to the hearing, the public authority in reality has to take a further decision as to whether to proceed. Indeed if the revelation is only during the hearing, the council in deciding to continue to press for an order takes yet a further decision. I do not see why if any one of these decisions could be shown to be "unreasonable" whatever that means (and I will come back to that), it could not be attacked.
41. If that is an appropriate analysis, because the county court is seized of the matter, it will be able to see whether there is an arguable case that in deciding even with the revelation of further facts to continue to seek possession is unreasonable. If "reasonableness" connotes something wider than rationality, that will be very close in reality to the court itself examining a defence based on Article 8.
42. Mr Watkinson may feel that some of what I have said points in his favour on this appeal and is beginning to develop a full blown Article 8 defence. That is not so and would of course be quite contrary to Kay. Where the above approach would lead me is to recognise that in truth where the circumstances are similar to those in Kay a court post- Kay and Doherty will actually be in much the same position as it has always been even before the convention was made part of the law.
43. The law gives an owner of land the right to obtain possession against a trespasser. But the owner, if the occupier has his home on the land in question, cannot obtain possession other than through proceedings in court. The court has to satisfy itself as to the owner's rights but can in making an order for possession pay regard to the personal circumstances of the occupier. Statute circumscribes the court's powers in certain cases (section 89 of the Housing Act 1980), and in others does not do so. In cases such as the present and Kay, the court simply has a discretion whether to suspend the order for possession for a short period.
44. It follows that I would accept that the question whether a decision of a public authority is "reasonable" post-Doherty goes beyond the question whether it is rational. I would also accept that a public authority should take account of the personal circumstances of the occupier known to it, but it does not follow from this that there will ever be circumstances in which it will be unreasonable to seek possession against trespassers in situations similar to those in Kay. Those situations may make it unreasonable not to allow a period of time to bring the possession order sought into effect but that is something which the court oversees and which the law allows for.
45. If I were wrong in my suggestion that it is possible to approach the question of review by reference to a series of decisions, no different result would emerge in the instant cases. The decision to be reviewed would be the original decision to take possession. The review would apply a test wider than the pure rationality test by reference to the facts known to the public authority at the time. Even if one made the assumption that the public authority was aware of the personal circumstances of the occupiers, their obligation to take account of them could never make it unreasonable to take proceedings for possession. Provided they could establish their absolute right to possession, personal circumstances could only be relevant to the extent to which a court was prepared to postpone execution, which a public authority would be entitled to leave to the court.
46. Ought we to remit in this case? In my view it would, just as in Kay, not be appropriate to do so. To echo the words of Lord Bingham in Kay, it is clear that under domestic property law the appellants have no right to occupy their respective premises, of which the council has an unqualified right of possession. The appellants fall outside the categories to which Parliament has provided protection. The council has no duty to accommodate the appellants and has a duty to manage its assets. The appellants have put in a draft pleading before us, but it does not allege any facts which provide some special claim to remain. If the matter were remitted the court would be bound to make an order for possession, although it would be entitled to take account of the personal circumstances in considering the time at which the order would be effective. That latter is something we could do without remission.
59. In considering whether the circumstances of this case were such that, once the Council was aware of the nature of the circumstances of the occupiers, it ought to have refrained from seeking possession, at least for the time being, I find assistance, as Waller LJ does, in the words of Lord Bingham (in the minority in Kay) in paragraph 47 of his speech, where he explained why he would not remit the case for further investigation:
"But it is clear that under domestic property law the appellants have no right to occupy their respective premises, of which the local authority has an unqualified right to possession. The appellants fall outside the categories to which Parliament has extended a measure of protection. The local authority has no duty to accommodate the appellants, but has a power and duty to manage its housing stock. The appellants have not pleaded or alleged facts which give them a special claim to remain. I am satisfied that if these cases were remitted, possession orders would necessarily be made."
60. The premises at issue here are not, of course, part of the Council's housing stock, since it is not a housing authority, but they are part of its assets which it has a power and a duty to manage in the interests of ratepayers and council tax payers, and so as to enable it to perform the duties and functions which it does have. Equally, the fact that some of the Appellants are not people to whom a relevant housing authority would owe duties under Part VII of the Housing Act 1996 does not seem to me to put this Council under a higher duty towards them, as it were to make good the omission of Parliament to impose more extensive duties under that legislation.
61. The Appellants do not have any right to stay on the land and, by the time of the trial, they had been there for almost 2 years after the date as at which HAZ, on whom any rights they had had previously had depended, had been told to leave. It does not seem to me that the Respondent could have been expected to do more, in order to respect the fact that parts of the property were the homes of the several Appellants, than to allow them some time which would give them a reasonable opportunity to make such alternative arrangements as might be open to them for their housing. I regard as unarguable any contention that the Respondent should have taken them on as tenants.
62. Given the period that had elapsed by the time of the trial since the original demand for possession in June 2006, it seems to me clear that the Respondent's decision to press for a possession order at the trial was a proper and valid public law decision. Such time as should, at best, have been allowed to the Defendants would have run from the effective date of the demand for possession from HAZ, in July 2006, and would have expired well before the trial in June 2008. That may not have been enough for the Defendants, even if they had been trying to find alternative accommodation during the whole of that period, given the difficulties they may face, but that would not entitle them to any further time. The Council cannot be obliged to allow them as long as they may turn out to need.
63. In those circumstances, I do not see that the decision to press for a possession order at trial could be regarded as one which no reasonable person would consider justifiable. There would be no point in remitting the case for further investigation of the facts. Those are the reasons for my conclusion that the appeal should be dismissed.
(c) The jurisdiction of the county court
Since section 129(6) is silent as to the consequences of a failure to comply with the time limit, whether a delay in carrying out a review will or will not be fatal to a decision to commence proceedings with turn upon the facts of the particular case.
He also noted that the objectives of the section were capable of being achieved even if the review was carried out after the expiration of the time limit.
(d) Judicial review of the decision of the review panel
(e) The application of these principles in the present case
Lord Justice Lloyd:
Lord Justice Mummery