QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF LINDA MAYS||(CLAIMANT)|
|THE LONDON BOROUGH OF BRENT||(DEFENDANT)|
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 PAUL TURNER (instructed by The London Borough of Brent Legal Services, Wembley, Middlesex, HA9 9HD) appeared on behalf of the DEFENDANT
Crown Copyright ©
"She requests that that application be withdrawn because the information on that form is incomplete. Ms Mays states that she was given inaccurate advice by her housing officer."
"Tenancy manager agrees that the original application can be withdrawn and Ms Mays can complete a new application."
"Unfortunately at the time of your mother's death she did not hold a secure tenancy at 28 Malvern Road. This is because she had breached a Suspended Possession Order made against her on 2/7/96.
"Regrettably this means that Section 87 of the 1985 Housing Act would not apply to you and the Council cannot allow you to succeed to the tenancy at 28 Malvern Road.
"We have therefore had to serve a Notice To Quit and send it to the Public Trust Office. A copy is enclosed for your information."
It then recommends that she should seek advice from the council's Homeless Persons Unit, from a Citizens Advice Bureau or from a solicitor.
"The position remains that there is no secure tenancy to be succeeded, and I have instructions to commence immediate legal proceedings to recover this property."
"1. You are denying our client the right to family life by not taking into consideration that her father lives with her. We understand she was told by her housing officer that her father could not be considered in any application she makes for accommodation to the council.
"2. The well being of a child is an issue here. Our client has a daughter aged nine who will also become homeless if you proceed with this action.
"3. It defies logic to make this family homeless. They are already in council accommodation and if you obtain an order for possession you will have to provide them with accommodation in any event."
"The issue that I had to grapple with here is whether in law your client has any right to succeed this tenancy. The decision in the case of Knightley makes it very clear that she could not.
"Your client is of course at liberty to raise the matters which you have alluded to in your letter under reference when the proceedings are issued."
"It seems to me that any attempt to evict a person, whether directly or by process of law, from his home would on the face of it be a derogation from the respect, that is the integrity, to which the home is prima facie entitled."
A little later in paragraph 32, he said:
"A legal threat to a secure home will, in the ordinary way, engage Article 8.1. In situations where the law affords an unqualified right to possession on proof of entitlement, it may be that Article 8(2) is met."
"(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2) Subsection (1) does not apply to an act if-
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently."
"It seems to me that the position since October 2, 2000, when the Human Rights Act took effect, is necessarily otherwise. This is for reasons of principle which spring from the very nature of the judicial review jurisdiction. As is very well known that jurisdiction exists, and has long existed, as the means by which the exercise of power by any public authority is strictly limited to the scope and purposes of the power's grant, and subjected also to the common law's insistence on rationality and fairness. Before October 2, 2000 the Convention rights did not, at least not directly, measure or confine the scope or purpose of the powers which any public authority enjoyed. But since then, compliance with the Convention rights listed in Part 1 of Schedule 1 to the HRA is a condition of the lawful exercise of power by every public authority, where the Convention's subject-matter is involved. It follows in my judgment that the High Court's ancient jurisdiction strictly to keep inferior bodies within the law now requires it (absent an effective alternative judicial remedy) to review the use of power by such bodies for compliance with the European Convention on Human Rights. This is not an extension of the jurisdiction. That has not changed. What has changed is the substantive law which governs the actions and omissions of public authorities. In the result (and here I leave aside the possible availability of other remedies which should be exercised first), whereas before October 2, 2002 judicial review's effectiveness as a remedy for ECHR violations was a contingent circumstance, now it is a necessary truth."
"I can see also that at the stage of the trial of the possession proceedings, there might be the rare case where something wholly exceptional has happened since service of the notice to quit, which fundamentally alters the rights and wrongs of the proposed eviction; and the county judge might be obliged to address it in deciding whether or not to make an order for possession. What I am clear the court cannot do is to take a position which disrupts the day-to-day operation of the scheme provided by Parliament in Part VII of the Housing Act 1996."
"The interests of the community are to be balanced against the applicant's right to respect for her 'home', a right which is pertinent to her and to her children's personal security and well-being."
The court went on:
"The importance of that right for the applicant and her family must also be taken into account in determining the scope of the margin of appreciation allowed to the respondent State.
"Whenever discretion capable of interfering with the enjoyment of a Convention right such as the one at issue in the present case is conferred on national authorities, the procedural safeguards available to the individual will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation. Indeed it is settled case law that, whilst Article 8 contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded to the individual by Article 8."
"In the light of the foregoing, the Court considers that proper regard was had to the applicant's predicament both under the terms of the regulatory framework, which contained adequate procedural safeguards protecting her interest under Article 8, and by the responsible planning authorities when exercising their discretion in relation to the particular circumstances of her case. The latter authorities arrived at the contested decision after weighing in the balance the various competing interests at issue. As pointed out above it is not the Court's task to sit in appeal on the merits of that decision. Although facts were adduced arguing in favour of another outcome at national level, the Court is satisfied that the reasons relied on by the responsible planning authorities were relevant and sufficient, for the purposes of Article 8, to justify the resultant interference with the exercise by the applicant of her right to respect for her home. In particular, the means employed to achieve the legitimate aims pursued cannot be regarded as disproportionate."
"The objective justification for the possession order lies in the statutory arrangements devised by Parliament for identifying who may succeed to successor tenancies and who may not following the death of a secure tenant. There is ample Strasbourg authority for the proposition that appropriate justification may be derived from a statutory scheme, and that it need not always be demonstrated on a case by case basis. In James v United Kingdom  8 EHRR 123 the European Court of Human Rights was confronted with a similar argument to the effect that independent justification had to be proffered for each individual act of leasehold enfranchisement. It was suggested that the legislation should have provided for judicial review going into the details and reasonableness of each proposed enfranchisement. The court disposed of this argument quite briefly:
'Such a system may have been possible, and indeed a proposal to this effect was made during the debates on the draft legislation. However, Parliament chose instead to lay down broad and general categories within which the right of enfranchisement was to arise. The reason for this choice, according to the Government, was to avoid uncertainty, litigation, expense and delay that would inevitably be caused for both tenants and landlords under a scheme of individual examination of each of many thousands of cases. Expropriation legislation of wide sweep, in particular if it implements a programme of social and economic reform, is hardly capable of doing entire justice in the diverse circumstances of the very large number of different individuals concerned. It is in the first place for Parliament to assess the advantages and disadvantages involved in the various legislative alternatives available. In view of the fact that the legislation was estimated to be likely to affect 98 to 99 per cent of the one and a quarter million dwellinghouses held on long leases in England and Wales, the system chosen by Parliament cannot in itself be dismissed as irrational or inappropriate'."
"The reasoning and decision of this court in Sheffield City Council v Smart appear to me to be so closely applicable as to be incapable of satisfactory distinction in the present case. The scheme of the Housing Act sections 87 and 113 deliberately excludes a person in the appellant's position from having security. The natural consequence, reinforced by the common law and statutory background relating to the grant and suspension of possession orders, is to entitle the local authority to recover possession of the flat. That scheme would be undermined if, following every death of a tenant, other residents of his flat could insist on arguing, as a defence in the possession proceedings, the general or particular merits of possession being retaken, when compared with the hardship to a particular remaining resident, whose home was involved. If and so far as any particular local authority was thought to be pursuing, either generally or in any individual case, a policy that was unfair, the possibility exists, subject to any appropriate time-limits, of a challenge by way of judicial review, probably on the expanded basis mentioned in Daly. Where such a challenge is mounted, the court seized of the possession claim can adjourn pending resolution of the judicial review proceedings. The due respect for home required by Article 8 is thus catered for by the availability of judicial review -- or, as Laws LJ pointed out in Sheffield City Council v Smart, in the rare case where that is not so, by a residual readiness on the part of the court itself to consider the position under Article 8."