Case No: B5/2012/0791
Neutral Citation Number: [2012] EWCA civ 1435
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BASILDON COUNTY COURT
District Judge Hodges
IPB56438
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 08/11/2012
Before :

LORD JUSTICE HALLETT
LORD JUSTICE ETHERTON
and
DAME JANET SMITH
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Between :

	THURROCK BOROUGH COUNCIL	Appellant	
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	AARON WEST	Respondent	

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Mr Ryan Kohli (instructed by Thurrock Council) for the Appellant
Liam Sullivan (instructed by Cumming & Riley) for the Respondent

Hearing dates : 24th October 2012
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Judgment
Lord Justice Etherton : 
1.	This is an appeal by Thurrock Borough Council (“the Council”) from the order dated 13 March 2012 of District Judge Hodges in the Basildon County Court dismissing the Council’s claim against the respondent, Aaron West, for possession of 12 Leicester Road, Tilbury, Essex, RM18 7AX (“the Property”).  
2.	The sole ground of the defence to the claim, and the sole ground for refusal of possession, was that an order for possession would be disproportionate and so an infringement of the right of the respondent to respect for his home under Article 8 of the European Convention on Human Rights (“Article 8”).
Factual background
3.	The facts are not in dispute and may be summarised in outline as follows.
4.	The Property is a three bedroom end-of-terrace house.
5.	On 15 November 1967 the Council granted a weekly joint tenancy of the Property to Mr George Henry West and Mrs Violet Rose West.  There is some contradictory evidence as to whether they were the grandparents or great grandparents of the respondent, but I shall refer to them as his grandparents as that is the description that has been used by both counsel and was the description used by the District Judge in his judgment.
6.	 In 2007 the respondent began occupying the Property with his grandparents. He was subsequently joined by his son, Harley West, on his birth and his partner, Samantha Dowward.
7.	The respondent’s grandfather died on 28 September 2008.  The tenancy automatically vested in the respondent’s grandmother as successor pursuant to the provisions of the Housing Act 1985 (“the 1985 Act”) ss. 87 and 89(2).
8.	The respondent’s grandmother died on 2 December 2010.  The respondent’s grandmother having succeeded to the tenancy on the death of her husband, section 37 of the 1985 Act precluded any further right of succession in favour of the respondent. Accordingly, the weekly tenancy vested in the estate of the respondent’s grandmother.  It was terminated on 3 October 2011 by notice to quit served on the Public Trustee on 5 September 2011.
The proceedings
9.	On 17 November 2011 the Council issued a claim for possession on the ground that the respondent had never been a tenant or sub-tenant of the Property and had no right to statutory succession under the 1985 Act ss. 87 and 88.
10.	By his Defence dated 8 February 2012 the respondent said that he opposed the claim for possession on the ground that the Court was required under Article 8 to consider whether an order for possession would be necessary in a democratic society and to consider the proportionality of making such an order.   The nub of the Defence is in paragraphs 7 and 8 as follows:
“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.”
11.	The case was assigned to the multi-track.
12.	A witness statement was made, on behalf of the Council, by Bill Sargent, a local housing manager, on 25 October 2011. It is not necessary to set out its contents, other than to say that he gave the history of the tenancy and stated that the respondent had no right to remain in the Property and the Council should be granted possession.
13.	The respondent made a witness statement dated 8 March 2012.  He set out the factual background that I have mentioned above.  He also mentioned the following.  He said that he had originally moved into the Property in 2007 when his grandmother was in ill health and his grandfather was in a care home.  He moved in partly for somewhere to live but mainly as his grandmother’s main carer.  She suffered from severe mobility difficulties and was on mobility allowance.  In due course he claimed a carer’s allowance.  He said that his partner originally lived nearby and frequently stayed in the Property overnight while his grandmother was alive, and that his son, who was living with him in the Property, would stay one or two nights a week with her at that time.
14.	The respondent described the Property as an end-of-terrace house with a hallway, a living room and a large kitchen on the ground floor and three bedrooms and a toilet and bathroom on the first floor.  The third bedroom is a very small room with an alcove in it with barely room for a bed and wardrobe.  The Property is in need of renovation.    
15.	He described his partner, his son and himself as “an established family in the household”, and he said that the Property is ideally suited to them as a family, particularly in view of his long association with the Property and it having been his sole residence for some four years since going there to look after his grandmother.  He said he always regarded it as part of the family home.
16.	He said that he had always paid the rent since his grandmother’s death and been a good tenant.  He described his work and that of his partner, which in both cases was part-time.  He said that they were both of limited means and, if the Property was taken away from them, not only would it cause great disruption but it would also mean that they would be homeless and the three of them would need to be re-housed by the Council.  He said they would not have the means to rent on the private market, and that taking away his tenancy would cause him detriment, which would not be commensurate with any possible advantage to the Council, whose council list would not thereby be reduced as the Council would have another family with priority on its housing list to re-house.  He concluded by saying it would not be a reasonable course of action in all the circumstances to order possession of the Property.
17.	  A witness statement was also made by the respondent’s partner, Samantha Dowward, on 8 March 2012.  She said she had read the witness statement of the respondent and confirmed that its contents were true.  She said that the Property was ideally suited to the needs of the appellant, herself and their son since it had two bedrooms and a very small box room in addition.  She said that the appellant and she have family and work ties in the borough. 
18.	The trial took place before District Judge Hodges on 13 March 2012.  By agreement the trial took place on the written evidence.  The hearing lasted between one and two hours.  On any footing, therefore, the assignment of the case to the multi-track is difficult to understand.  The Council was represented by one of its officers.  The respondent was represented by Mr Liam Sullivan, counsel.
The District Judge’s judgment
19.	The District Judge, as I have said, gave judgment for the respondent and dismissed the claim.  He gave an immediate judgment. Having set out the facts and the ground of defence, the District Judge referred to Manchester City Council v Pinnock  [2010] UKSC 45, [2011] 2AC 104, and particularly paragraphs [60] – [64] in the judgment of the Supreme Court given by Lord Neuberger.  He then said as follows:
“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.”
The appeal
20.	Mr Ryan Kohli, counsel, appeared for the Council on this appeal.  Mr Sullivan again appeared for the respondent.
21.	Essentially for the reasons ably advanced by Mr Kohli I would allow the appeal.  The District Judge did not have the benefit of the considerable citation of authority which we have enjoyed.  Had he done so, I am sure he would have appreciated that the facts of the present case do not even reach the threshold of a seriously arguable Article 8 defence.
22.	The principles to be applied are clear.  First, it is a defence to a claim by a local authority for possession of a defendant’s home that the possession is not necessary in a democratic society within Article 8(2), that is to say it would be disproportionate in all the circumstances.  An order for possession in such a case would be an infringement of the defendant’s right under Article 8 to respect for his or her home and so unlawful within the Human Rights Act 1998 s. 6(1).
23.	Secondly, the test is whether the eviction is a proportionate means of achieving a legitimate aim:  Pinnock at [52].  The Supreme Court said there that it would prefer to express the position in that way rather than use the yardstick of confining an arguable Article 8 defence to “very exceptional cases” as mentioned by Lord Bingham in Kay v Lambeth BC [2006] UKHL 10, 2 AC 465, at [29] and endorsed by the European Court in McCann v UK (2008) 47 EHRR 913 at [54] and Kay v UK [2011] HLR 13 at [73].  
24.	Thirdly, it is nevertheless clear that the threshold for establishing an arguable case that a local authority is acting disproportionately and so in breach of Article 8 where re-possession would otherwise be lawful is a high one and will be met in only a small proportion of cases: Hounslow BC v Powell [2011] UKSC 8, [2011] 2 AC 186, at [35] (Lord Hope).  The circumstances will have to be exceptional to substantiate an Article 8 defence:  Powell at [92] (Lord Phillips), Corby BC v Scott [2012] EWCA Civ 276, [2012] HLR 23 at [35] (Lord Neuberger MR)).  In Birmingham City Council v Lloyd (2012) EWCA Civ 969 at [25] Lord Neuberger indicated that in some cases the circumstance might even have to be “extraordinarily exceptional”, but I would respectfully suggest that references to degrees of exceptionality may unnecessarily complicate matters.
25.	Fourthly, the reasons why the threshold is so high lie in the public policy and public benefit inherent in the functions of the housing authority in dealing with its housing stock, a precious and limited public resource.  Local authorities, like other social landlords, hold their housing stock for the benefit of the whole community and they are best equipped, certainly better equipped than the courts, to make management decisions about the way such stock should be administered: Powell at [35].  The public policy considerations were addressed in Pinnock  as follows: 
“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 [2004] 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. “
26.	Fifthly, that is why the fact that a local authority has a legal right to possession, aside from Article 8, and is to be assumed to be acting in accordance with its duties (in the absence of cogent evidence to the contrary), will be a strong factor in support of the proportionality of making an order for possession without the need for explanation or justification by the local authority:  Pinnock at [53] and Powell at [37] (Lord Hope).  It will, of course, always be open to a local authority to adduce evidence of particularly strong or unusual reasons for wanting possession: ibid.
27.	In the present case, as Mr Kohli has submitted, there is a further important policy consideration on which the Council is entitled to rely.  That is Parliament’s decision under the 1985 Act to limit the persons and the occasions for automatic succession to a secure tenancy.  As Brooke LJ said in Wandsworth LBC v Michalak [2002] EWCA Civ 271, [2003] 1 WLR 617, at [41]:
“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.”
28.	In R (on the application of Gangera) v Hounslow LBC  [2003] EWHC 794, [2003] HLR 68, Moses LJ elaborated on the policy underlying the restrictions on statutory succession as follows:
“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.[63], 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   [45]; Lord Woolf C.J. in Poplar Housing Association Ltd v Donoghue [2002] Q.B. 48 at [69]). 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. …”
29.	Sixthly, an Article 8 defence on the grounds of lack of proportionality must be pleaded and sufficiently particularised to show that it reaches the high threshold of being seriously arguably: Powell at [33] and [34] (Lord Hope).
30.	Seventhly, unless there is some good reason not to do so, the Court must at the earliest opportunity summarily consider whether the Article 8 defence, as pleaded, and on the assumption that the pleaded facts relied upon are correct, reaches that threshold:  Pinnock  at [61], Powell  at [33]and [34] (Lord Hope) and [92] (Lord Phillips), Corby BC at [39], Birmingham City Council v Lloyd at [26] and [27] (Lord Neuberger MR).  If the pleaded defence does not reach that threshold, it must be struck out or dismissed: ibid.  The resources of the court and of the parties should not be further expended on it.
31.	Eighthly, even where an Article 8 defence is established, in a case where the defendant would otherwise have no legal right to remain in the property, it is difficult to imagine circumstances in which the defence could operate to give the defendant an unlimited and unconditional right to remain: comp. Pinnock  at [52].  That might be the effect of a simple refusal of possession without any qualification.  It is particularly difficult to imagine how that could possibly be appropriate in a case where the defendant has never been a tenant or licensee of the local authority.  Otherwise, the effect of the Article 8 defence would be that the Court would have assumed the local authority’s function of allocating  its housing stock, preferring the right of the defendant to remain, without any tenancy or contract, over all the other people entitled to rely on the local authority’s statutory housing duties and without the benefit of any knowledge of who those people are and their circumstances and of other relevant matters which would properly guide the local authority in housing management decisions.
32.	Having regard to the above principles it is quite clear that the Article 8 defence in the present case, as pleaded, does not even reach the threshold of being reasonably arguable.  The defence should have been struck out summarily at the earliest opportunity. For what it is worth, even if the facts and matters in the witness statements of the appellant and Ms. Dowward are taken into account, the Article 8 defence still does not reach that threshold.
33.	Mr Sullivan submitted, in eloquent submissions, that in the present case there was a “confluence of the unexceptional, the cumulative effect of which is exceptional”.  There is, however, nothing exceptional in this context about the housing needs of a couple who have limited financial means and are the parents of a young child.  Indeed, such a family unit is entirely typical of those with a need for social housing.  They are no less typical because, as emphasised by Mr Sullivan, they have not defaulted on any financial obligations or committed any nuisance or other wrongdoing as occupiers and they have had a long association with the locality.  The fact that they have occupied the Property for some time is in itself irrelevant since Parliament has limited the number of successions to a secure tenancy however long a person’s association with, and emotional ties to, a property, and that legislative policy does not infringe Article 8.  
34.	The District Judge seems to have thought that they fell into the same category of vulnerability as was described by Lord Neuberger in Pinnock at [64] as follows:
“… [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.”
35.	I cannot see any comparison between the respondent, his partner and their son, on the one hand, and those described in that passage, on the other hand.  Moreover, as appears from that passage, the situation being postulated there was one in which the local authority was not securing alternative accommodation.  In the present case, there is no suggestion that the Council has or would refuse to re-house the respondent’s family.  Indeed, as Lord Neuberger observed in Corby BC at [30], the fact that the respondent and his family have a right to be re-housed weighs against the Article 8 defence.  Moreover, as the District Judge himself observed, the accommodation in the three-bedroom Property exceeds the housing needs of the respondent’s family.
36.	Sympathy for the predicament of the respondent and his family, which is entirely understandable, cannot obscure the remarkable effect of the District Judge’s decision.  That decision precludes the Council from recovering possession of the Property from persons who have never been granted by the Council any right to occupy it, and whose housing needs are less than the accommodation provided by the Property, and confers on those persons a right to remain without any limitation of time or other conditionality, in conflict with the lawful legislative policy limiting succession rights to secure tenancies.  It deprives the Council of its public right and duty to make management decisions about the Property as part of its housing stock.  In effect, the Court has assumed for itself the power Parliament has conferred on the Council to select the most suitable property for the numerous and various persons who have a legal right to social housing.  This has been done without any knowledge on the Court’s part as to who are those other people who have an equal, or possibly better, claim to be housed and for whom the Property would be as suitable or possibly more suitable that the respondent and his family.  On the basis that it would be wrong for the Council to permit the respondent to remain in the Property without payment of rent and other conditions, the effect of the order is to compel the Council to grant the respondent a new tenancy of the Property to which he has no legal right.
Conclusions
37.	I would allow the appeal.  
38.	The case should not have been assigned to the multi-track.  The Defence ought to have been summarily dismissed on the footing that the facts and matters pleaded in the Defence could not even arguably amount to an Article 8 defence.  
Dame Janet Smith
39.	I agree.
Lady Justice Hallett
40.	I also agree.