QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
B e f o r e :
|THE QUEEN ON THE APPLICATION OF NECKEESHA ERSKINE||(CLAIMANT)|
|LONDON BOROUGH OF LAMBETH||(DEFENDANT)|
|OFFICE OF THE DEPUTY PRIME MINISTER||(INTERESTED PARTY)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR M HUTCHINGS (instructed by LEGAL SERVICES DEPARTMENT, LONDON BOROUGH OF LAMBETH) appeared on behalf of the DEFENDANT
MR J KARAS (instructed by TREASURY SOLICITOR) appeared on behalf of the INTERESTED PARTY
Crown Copyright ©
"... a dwelling-house is fit for human habitation for the purposes of this Act unless, in the opinion of the local housing authority, it fails to meet one or more of the requirements in paragraphs (a) to (i) below and, by reason of that failure, is not reasonably suitable for occupation...
(f) there are satisfactory facilities in the dwelling-house for the preparation and cooking of food, including a sink with a satisfactory supply of hot and cold water."
"... where the local housing authority are satisfied that a dwelling house... is unfit for human habitation, they shall serve a repair notice on the person having control of the dwelling house..."
"Article 8: Right to Respect for Private and Family Life.
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
"Article 14: Prohibition of Discrimination.
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
"While it is true that this guarantee [that is to say the guarantee under Article 2 of the First Protocol of the Convention] has no independent existence in the sense that under the terms of Article 14 it relates solely to 'rights and freedoms set forth in the Convention', a measure which in itself is in conformity with the requirements of the Article enshrining the right or freedom in question may however infringe this Article when read in conjunction with Article 14 for the reason that it is of a discriminatory nature."
"Thus persons subject to the jurisdiction of a Contracting State cannot draw from Article 2 of the Protocol the right to obtain from the public authorities the creation of a particular kind of educational establishment; nevertheless, a State which had set up such an establishment could not, in laying down entrance requirements, take discriminatory measures within the meaning of Article 14.
To recall a further example, cited in the course of the proceedings, Article 6 of the Convention does not compel States to institute a system of appeal courts. A State which does set up such courts consequently goes beyond its obligations under Article 6. However it would violate that Article, read in conjunction with Article 14, were it to debar certain persons from these remedies without a legitimate reason while making them available to others in respect of the same type of actions."
"Article 14 complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to 'the enjoyment of the rights and freedoms' safeguarded by those provisions. Although the application of Article 14 does not necessarily presuppose a breach of those provisions - and to this extent it has an autonomous meaning - there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter."
"In this connection the Court, like the Commission, considers that the refusal to grant Mr Petrovic a parental leave allowance cannot amount to a failure to respect family life, since Article 8 does not impose any positive obligation on States to provide the financial assistance in question.
Nonetheless, this allowance paid by the state is intended to promote family life and necessarily affects the way in which the latter is organised as, in conjunction with parental leave, it enables one of the parents to stay at home to look after the children.
The court has said on many occasions that Article 14 comes into play whenever 'the subject-matter of the disadvantage... constitutes one of the modalities of the exercise of a right guaranteed', or the measures complained of are 'linked to the exercise of a right guaranteed.'
By granting parental leave allowances States are able to demonstrate their respect for family life within the meaning of Article 8 of the Convention; the allowance therefore comes within the scope of that provision. It follows that Article 14 - taken together with Article 8 - is applicable."
"It would appear, however, that even the most tenuous link with another provision in the Convention will suffice for article 14 to enter into play."
"The right to respect referred to in this paragraph extends to the person's home. But the essence of this right lies in the concept of respect for the home as one among various things that affect a person's right to privacy. The context in which the reference to the person's 'home' must be understood is indicated by the references in the same paragraph to his private and family life and to his correspondence. The emphasis is on the person's home as a place where he is entitled to be free from arbitrary interference by the public authorities. Article 8(1) does not concern itself with the person's right to the peaceful enjoyment of his home as a possession or as a property right. Rights of that kind are protected by Article 1 of the First Protocol...
53. As the jurisprudence of the European Court of Human Rights and of the European Commission of Human Rights has developed, it has tended to reinforce the impression which is conveyed by Marckx v Belgium that the object of Article 8 is to protect the individual against arbitrary interference by the public authorities with his right to privacy and that it is not concerned, as such, with the protection of his right to own or to occupy property."
"I have already indicated (i) that section 6(I) of the 1998 Act makes it unlawful for a public authority to act in a way which is incompatible with a Convention right, (ii) that a local housing authority is a 'public authority' in that context and (iii) that there may be positive obligations inherent in effective respect for private or family life. The answer, therefore, to the question 'does section 6 of the Human Rights Act 1998 impose on a local authority landlord an obligation to take steps to ensure that the condition of a dwelling house which it has let for social housing is such that the tenant's Convention right under article 8 is not infringed?' must be in the affirmative."
"An Act to provide better Dwellings for Artizans and Labourers.
Whereas it is expedient to make Provision for taking down or improving Dwellings occupied by Working Men and their Families which are unfit for Human Habitation, and for the building and Maintenance of better Dwellings for such Persons instead thereof: Be it enacted..."
"... what is the Cause of the Evil so reported on, and the Remedy thereof, and if such Evil is occasioned by Defects in any Premises, whether the same can be remedied by structural Alterations and Improvements or otherwise, or whether such Premises, or any and what Part thereof, ought to be demolished".
"... if such Objections are overruled, the Local Authority, if they deem it necessary, shall cause to be prepared a Plan and Specification of the Works (if any), and an Estimate of the Cost of such Works, required to be executed."
"If the owner of any dwelling-house suitable for occupation by persons of the working classes fails to make or keep the house in all respects reasonably fit for human habitation, then, without prejudice to any other powers, the local authority may serve a notice upon the owner of the house requiring him within a reasonable time, not being less than twenty-one days, specified in the notice, to execute the works specified in the notice as being necessary to make the house in all respects reasonably fit for human habitation."