England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM CIVIL JUSTICE CENTRE
MR RECORDER DEL FABBRO

		Royal Courts of Justice Strand, London, WC2A 2LL
		4th July 2012

Lord Neuberger:

1. On 11 November 1991 Birmingham City Council ('the Council') granted to Dean Gibbs a weekly secure tenancy of 8 Sandown Court, Abdon Avenue, Birmingham ("the flat"). Mr Gibbs died on 21 August 2009. Some time during the next month Mr Gibbs' brother, Richard Lloyd, moved into the flat without the knowledge and consent of those responsible for Mr Gibbs' estate or of the Council.
2. At that time, Mr Lloyd was the Council's tenant of another property, 6 Coxwell Gardens in Ladywood, Birmingham, but an order for possession had been made against him for non-payment of rent. However, shortly before he moved into the flat, he had succeeded in having the warrant of possession suspended on terms that he paid each week the current rent and a small amount off the arrears.
3. On 2 November 2009, having moved into the flat from 6 Coxwell Gardens, Mr Lloyd visited the Council's neighbourhood offices, informed a housing officer that he was living in the flat, and sought to raise a claim for housing benefit. He was told he would remain liable for the rent on 6 Coxwell Gardens until he served a notice to determine his tenancy, but he was warned that if he did so and was then not allowed to take a tenancy of the flat, he would be likely to be held to be voluntarily homeless.
4. In a letter of 19 November 2009 , Mr Lloyd was told that i) the Council was not prepared to grant him a secure tenancy of the flat; ii) the Council was proposing to serve notice to quit on the personal representatives of his brother Mr Gibbs, thereby determining the continuing tenancy of the flat; iii) when such notice to quit had been served and expired, possession proceedings would be brought against him if he had not vacated the flat; iv) he should return to 6 Coxwell Gardens; and v) he could appeal against the decision refusing his application to succeed his deceased brother as tenant of the flat, and that he had 14 days to do so.
5. On 26 November 2009, Mr Lloyd served notice on the Council determining his tenancy of 6 Coxwell Gardens on 28 December 2009. Some three weeks later, out of time, on 16 December 2009, Mr Lloyd wrote to the Council seeking to appeal the decision to refuse him a tenancy of the flat. Having obtained possession of 6 Coxwell Gardens on 10 January 2010, the Council subsequently, on 5 March 2010, dismissed Mr Lloyd's appeal against the refusal to grant him a secure tenancy of the flat. Because of his appeal which had just been refused the council had stayed their hand in serving notice to quit on the public trustee as the representative of Mr Gibbs, but they served such notice on 30 March 2010, expiring on 3 May 2010.
6. Mr Lloyd remained in the flat. On 7 October 2010 the council issued proceedings for possession of the flat against him. On 7 January 2011 the possession claim came before the district judge, who allocated the multitrack, ordered a defence be served before 14 January and ordered that the claim be listed for a one-day hearing.
7. On 12 January Mr Lloyd served a defence which effectively accepted that he was a trespasser in the flat, but contended that he should be allowed to remain in the flat on the ground that evicting him from the flat would be a disproportionate interference with his right to respect for his home under Article 8 of the European Convention on Human Rights on various grounds which were in due course reflected in the judgment.
8. After a hearing in which Mr Lloyd gave evidence, Mr Recorder Del Fabbro refused to make an order for possession against him for reasons contained in a full and careful judgment, dated 10 November 2011. Effectively the Recorder held that to make an order for possession against Mr Lloyd, even though he was and had always been a trespasser in the flat, would be a disproportionate interference with his Article 8 rights.
9. The reasons for the Recorder's decision were, in summary, were: (i) Mr Lloyd had had a history of depression which would worsen if he was evicted and made homeless; (ii) his financial circumstances and previous history of rent arrears at 6 Coxwell Gardens would render it difficult for him to find other accommodation if he was evicted from the flat; (iii) much effort and some expenditure, including a start up loan of £1,000, had been incurred by Mr Lloyd in setting up his own web design business, all of which would be wasted if he lost the place from which to work; (iv) there was confusion in the circumstances in which Mr Lloyd gave up his tenancy of 6 Coxwell Gardens; and (v) this was not a case where the occupier of the property concerned, namely Mr Lloyd, had been guilty of nuisance, anti-social behaviour or criminal activity and he appeared to get on with his neighbours.
10. The Council now appeals the decision, contending that the Recorder was wrong to refuse to make an order for possession. The appeal has taken some time to get on, not least because, when the appeal last was before the court for hearing, Mr Lloyd had been deprived of legal aid and was hoping to obtain it. Although he has not been able to obtain legal aid, he has realistically accepted that this appeal must nonetheless proceed with him as a self-representing litigant. He has made submissions, if I may say so, on his behalf very clearly and succinctly.
11. The interrelationship of domestic property law and Article 8 has been considered in a large number of cases both in this jurisdiction and in Strasbourg. The conflict between the approach of the House of Lords and the approach taken by the Strasbourg court was resolved in Manchester City Council v Pinnock [2010] UKSC 45, since when the law has been developed domestically in a number of cases, most notably by the Supreme Court in Hounslow London Borough Council v Powell [2011] UKSC 8, but also by this court in Corby Borough Council v Scott [2012] EWCA Civ 276.
12. It is now clear that a person who has no right under domestic law to remain in his home can in principle invoke Article 8 so as to defeat a claim for possession. However, as was said by Lord Phillips in paragraph 92 of Powell, this court in Pinnock stated that it is only "in very highly exceptional circumstances that it would be appropriate for the court to consider a proportionality argument". Lord Phillips added "I believe that this proposition is an accurate statement of fact in relation to introductory tenant". If that is right, then it must be at least as true, indeed in my view even more true, in the case of someone who entered the property as a trespasser and has remained a trespasser.
13. What is striking about this case, unlike in the cases which I have mentioned, and indeed in the earlier House of Lords cases of Harrow London Borough Council v Qazi [2003] UKHL 43 and Kay v Lambeth London Borough Council [2006] UKHL 10, is that the defendant in this case was not merely a trespasser in the property concerned at the time the possession order was sought but he never has had any right to occupy the premises, whether under contract or statute. He entered the property as a trespasser and a trespasser he has remained.
14. Kay was heard together with Leeds City Council v. Price, where the occupiers were and had always been trespassers. Lord Bingham, who was in the minority, but whose conclusion ultimately prevailed in Pinnock, said this at paragraph 37 of the test which had to be satisfied by an occupier seeking to rely on Article 8:

"Rarely, if ever, could this test be satisfied where squatters occupy the land of a public authority which they do not and (unlike Connors) never have had any right to occupy, and the public authority acts timeously to evict them. The public look to public authorities to preserve their land for public purposes and to bring unlawful occupation to an end."

15. Similarly, in Chapman v. the United Kingdom [GC], no. 27238/95, the fourth section of the Human Rights Court held at paragraph 32 that:

"Article 8 cannot be interpreted so as to require the Contracting States to tolerate unauthorised camping on land vested in the State."

16. That approach was confirmed in another, and more recent, decision of the fourth section of the court, which Mr Manning, who appears on behalf of the council today, drew our attention: Yordanova & Others v Bulgaria, 25446/06, paragraphs 130-132.
17. The effect of the decision in this case would involve the Recorder usurping the Council's role as the entity responsible for allocating its housing stock. In Qazi, at paragraph 25, Lord Bingham said,

"…that the 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."

Much the same had been said in Pinnock at paragraph 52:

"Local authorities hold their housing stock, as do other social landlords, for the benefit of the whole community. It is in the interests of the community as a whole that decisions are taken as to how it should best be administered. The court is not equipped to make those decisions, which are concerned essentially with housing management. This is a factor to which great weight must always be given, and in the great majority of cases the court can and should proceed on the basis that the landlord has sound management reasons for seeking a possession order."

(And see Powell at paragraph 35).

18. It would, I accept, be wrong to say that it could never be right for the court to permit a person, who had never been more than a trespasser, to invoke Article 8 as a defence against an order for possession. But such a person seeking to raise an Article 8 argument would face a very uphill task indeed, and, while exceptionality is rarely a helpful test, it seems to me that it would be require the most extraordinarily exceptional circumstances.
19. With all respect to the Recorder, it seems to me that even if Mr Lloyd had been a tenant whose tenancy had come to an end, and who, as an ex tenant, had no right to remain in occupation under domestic law, it does not seem to me that he would have had a strong enough case to justify the refusal of an order for possession.
20. The fact that Mr Lloyd suffered from depression and that his depression might get worse if he was evicted was not supported by that evidence, and it was apparent that his depression was in abeyance. It is sad, but not exceptional. The fact that he would encounter difficulty in finding other accommodation slightly misses the point of Article 8, whose purpose in this connection is respect for a person's current home: it does not involve any duty to ensure that a person has a home. It is not an irrelevant factor, but it is a minor, and, sadly, not by any means an exceptional, factor. The business concerns were, it seems to me, marginal at best when it comes to considering Article 8.
21. The circumstances in which Mr Lloyd served notice to quit, which effectively deprived him of 6 Coxwell Gardens, was the point on which, to my mind rightly, Mr Lloyd concentrated in his submissions. I accept that he may well have understood the Council to have been encouraging him -- I do not think even he would say in any sense promising him -- that he could succeed to his brother's tenancy at the time before he served his notice to quit. The highest that the Recorder was able to put it was in paragraph 29 of his judgment where he said, "I find that [Mr Lloyd] had raised expectations [I think that means that his expectations had been raised by the Council] that he might be allowed to remain in occupation of his late brother's premises" (my emphasis).
22. It seems to me that that is the very highest that Mr Lloyd's case could be put. It may be that as a result of what was said at a meeting or in a letter, Mr Lloyd was left with the impression that he might be able to succeed to his brother's tenancy. But that was indeed the case: he had the right to apply to do so. However, it seems to me clear from all the documentation that the Council made it quite clear to him that he may well not succeed in doing so, and that he would be at risk if he served notice to quit falling between two stools: by serving notice to quit he would lose his tenancy at 6 Coxwell Gardens, and if he was denied a tenancy of the flat, he would lose the right to stay in the flat as well.
23. In the course of his submissions, Mr Lloyd suggested, on the basis of evidence not before the Recorder, that he had been invited to join the tenants' association in relation to the estate of which the flat formed part. We have not seen the document and do not know its date, but, I shall assume in his favour that (i) we can take that into account even though it is not before the judge, (ii) the invitation was given before he served his notice to quit, and (iii) that the invitation was unqualified. Even on those assumptions, I do not see how that, in light of the warnings he was given, in particular the letter of 19 November, he can possibly say that the fact that he was invited to consider applying to join the tenants' association as a reason reasonably induced him to serve his notice to quit.
24. Finally, there is the point that he has not caused a nuisance, or done anything criminal, and has got on with his neighbours. To my mind that is not a reason which begins to help him establish an Article 8 argument; all it does is to say that a factor undermining his Article 8 argument, such as existed in Pinnock, does not exist in his case.
25. Like the Judge in the Corby case, it seems to me that the Recorder was in this case over-influenced by the understandable personal sympathy, for the circumstances in which Mr Lloyd found himself. Having said that, to my mind Mr Lloyd was well short of being able to cross the high threshold which an occupier with no domestic legal right to occupy his home, and miles away of the threshold which an occupier who has never been anything other than a trespasser has to cross, in order to be able to invoke Article 8 and to defeat an application for possession.
26. In Pinnock, the Supreme Court explained that, when an Article 8 defence is raised in a case coming before the District Judge in the possession list, the District Judge should identify the grounds on which the Article 8 right is said to be based, so that it can be assessed whether there is a real prospect of the Article 8 defence succeeding. This involves taking the facts on which the Article 8 argument is based as being correct and deciding whether, if faced with those facts, a judge could reasonably decide that an Article 8 defence would justify refusing a possession order.
27. In these proceedings, the District Judge appears to have listed the Council's claim for a one-day hearing without seeing Mr Lloyd's defence. Had he not taken that course, it seems to me that a District Judge considering Mr Lloyd's case on its face, and taking all the facts Mr Lloyd relied on as correct, should peremptorily have decided that the Article 8 argument was not maintainable and should not have let it go to trial. If that had happened in this case, a one-day hearing would have been avoided.
28. As it is, the District Judge did not take that course; there was a one-day hearing, and, ironically in all the circumstances, the Recorder, decided that the Article 8 defence was made out. He was in my view wrong for the reasons I have given, and therefore I would allow this appeal.

Lord Justice Longmore:

29. I agree.

Lord Justice Gross:

30. I also agree.

Order: Appeal allowed