ON APPEAL FROM BASILDON COUNTY COURT
District Judge Hodges
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE ETHERTON
DAME JANET SMITH
| THURROCK BOROUGH COUNCIL
|- and -
Liam Sullivan (instructed by Cumming & Riley) for the Respondent
Hearing dates : 24th October 2012
Crown Copyright ©
Lord Justice Etherton :
"7. The First Defendant will maintain that under Article 8 of the European Convention on Human Rights he is entitled to the right of respect for his home and that there shall be no interference by a public authority with the exercise of this right except in accordance with the law and as is necessary in a democratic society in the interests of the economic well being of the country, ie, that any Court Order must be proportionate.
8. In all the circumstances of the case the First Defendant, having occupied and paid rent for his home for nearly four years since April 2008 and with his partner Samantha Downward [sic] and son Harley West for over since [sic] years since 28th October 2009, it is not proportionate that he and his family should be evicted from their home."
The District Judge's judgment
"17. That sets out the test that I have to carry out and my assessment is as follows. The property the subject of the proceedings is the home of the defendant; it is also the home of his young son, Harley, born on the 28th October 2009. It has been the defendant's home since about 2007 and Harley since his birth. It is also the home of his partner since about the time of Harley's birth and he has a strong local connection. I was told in submissions that the local authority would plan on re-housing the defendant, but that the current house exceeds his needs, being a three-bedroom property where he has only a requirement for two bedrooms, presumably one to be shared between himself and his partner and one for Harley. I am however told that the third bedroom is a small bedroom.
18. It does seem to me that he is over-housed to that extent. The local authority is a substantial provider of accommodation, having many properties, but I am told has a huge waiting list and I have no doubt that is the case. In these difficult times there are many people seeking accommodation and the local authority has an obligation to manage its housing stock. It has an obligation to put square pegs in square holes if I can put it that way, to put people in accommodation in accordance with their needs and I acknowledge all of that.
19. However, on balance and exercising the test for proportionality, it seems to me that to evict this small family and this young child from this property to re-house them in another property which is one bedroom smaller, against all the background of the connection would be disproportionate.
20. Lord Neuberger clearly highlighted that people who might suffer physical and mental difficulties might well fall into a special category. It seems to me that families with young children fall into a similar situation and although they are not expressly included in that paragraph, it seems to me that it is another factor which in this case is of particular weight here. For these reasons, I find that the Article 8 defence succeeds."
"52…. Where a person has no right in domestic law to remain in occupation of his home, the proportionality of making an order for possession at the suit of the local authority will be supported not merely by the fact that it would serve to vindicate the authority's ownership rights. It will also, at least normally, be supported by the fact that it would enable the authority to comply with its duties in relation to the distribution and management of its housing stock, including, for example, the fair allocation of its housing, the redevelopment of the site, the refurbishing of sub-standard accommodation, the need to move people who are in accommodation that now exceeds their needs, and the need to move vulnerable people into sheltered or warden-assisted housing. Furthermore, in many cases (such as this appeal) other cogent reasons, such as the need to remove a source of nuisance to neighbours, may support the proportionality of dispossessing the occupiers. "
"54. Unencumbered property rights, even where they are enjoyed by a public body such as a local authority, are of real weight when it comes to proportionality. So, too, is the right – indeed the obligation – of a local authority to decide who should occupy its residential property. As Lord Bingham said in Harrow London Borough Council v Qazi  1 AC 983, 997, para 25:
"[T]he administration of public housing under various statutory schemes is entrusted to local housing authorities. It is not for the court to second-guess allocation decisions. The Strasbourg authorities have adopted a very pragmatic and realistic approach to the issue of justification."
Therefore, in virtually every case where a residential occupier has no contractual or statutory protection, and the local authority is entitled to possession as a matter of domestic law, there will be a very strong case for saying that making an order for possession would be proportionate. "
"It appears to me that this is pre-eminently a field in which the courts should defer to the decisions taken by a democratically elected Parliament, which has determined the manner in which public resources should be allocated for local authority housing on preferential terms. Parliament decided to continue to adopt the Rent Act concept of "a member of the tenant's family" when identifying who might succeed to a secure tenancy, but to introduce a measure of legal certainty, a concept prized by Strasbourg, when explaining with precision the type of close relative who should be entitled to be the first (and only) successor to a secure tenancy."
"22. … The policy underlying the rules of succession contained within the 1985 Act, in the context of the legislative provisions relating to the management and allocation of local authority housing, is clear. As Dawn Eastmead, a divisional manager in the Directorate of Housing of the Office of the Deputy Prime Minister, points out in her witness statement, at the time of the introduction of the Housing Act 1980 the Minister observed that it was necessary to strike a balance between the needs of the tenant's family and the duty of a local housing authority to manage its housing stock in the interests of the locality and of those in greatest need (see para.13). The restriction on the rights to assign provide for some limitation to the duration of a secure tenancy so as to make available local authority housing in the interests of the needs of others (see para.20). Every secure tenant, whether sole or joint, is limited to one assignment or other transmission of the secure tenancy. The rule limiting succession to one transmission applies to all secure tenants equally. In Wandsworth London Borough Council v Michalak … Mance L.J. commented upon these provisions:
"The reality is that Parliament has, in the provisions of ss.87 and 113, considered and determined the extent to which those residing with a secure tenant should be entitled to succeed to the benefits of secure tenancy. Outside the categories of spouse and members of the tenant's family, as defined, others residing were not to succeed to any secure tenancy and Parliament necessarily contemplated that the dwelling house would become available once again to the relevant local authority for use in the ordinary way, as it should determine. That expectation is reinforced by the common law principle and statutory provisions relating to the making and suspension of possessions orders (in particular s.89 of the Housing Act 1980)." (See para., my parenthesis).
23 It is plain that Parliament had to strike a balance between security of tenure and the wider need for systematic allocation of the local authority's housing resources in circumstances where those housing resources are not unlimited. The striking of such a balance is pre-eminently a matter of policy for the legislature. The court should respect the legislative judgment as to what is in the general interest unless that judgment was manifestly without reasonable foundation (see Mellacher v Austria (1989) 12 EHRR 391 ; Lord Woolf C.J. in Poplar Housing Association Ltd v Donoghue  QB 48 at ). There is no basis for contending that the statutory scheme, which seeks to allocate public resources for the provision of local authority housing to those most in need, amounts to a disproportionate interference with a person's right to respect for his home. No such contention is made in the instant case. …"
"… [T]he suggestions put forward on behalf of the Equality and Human Rights Commission, that proportionality is more likely to be a relevant issue "in respect of occupants who are vulnerable as a result of mental illness, physical or learning disability, poor health or frailty", and that "the issue may also require the local authority to explain why they are not securing alternative accommodation in such cases" seem to us well made."
Dame Janet Smith
Lady Justice Hallett