IN THE QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| THE QUEEN on the application of
- v –
|THE LONDON BOROUGH OF HOUNSLOW
Smith Bernal Wordwave Limited,
190 Fleet Street London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court
Mr Matthew. Hutchings (instructed by The Borough of Hounslow) for the Defendant
Mr Jonathan Karas (instructed by The Treasury Solicitor) for the First Secretary of State
Crown Copyright ©
"Original tenancy in mother's name Mr Gangera (sic) has remained in residence and can continue to remain if rent is paid."
Teresa North says that even if the true facts of the adjournment had been known it would not have made any material difference to the outcome of her assessment. She took the view that the claimant fell within the lowest priority group within the Council's eligibility criteria and was entitled to be provided with information and guidance but did not attain the threshold for entitlement to accommodation pursuant to Section 21 of the 1948 Act. Unfortunately her assessment was not forwarded until 14th November 2002. She accepted that the claimant's circumstances might change as a result of the hearing in October 2002 and that a reassessment might be required.
The Statutory Scheme
(i) Security of Tenure for Secure Tenants.
(ii) Succession to a secure tenancy.
"A person is qualified to succeed the tenant under a secure tenancy if he occupies the dwelling house as his only or principal home at the time of the tenant's death and either -
a. he is the tenant's spouse or
b he is another member of the tenant's family and has resided with the tenant throughout the period of 12 months ending with the tenant's death;
unless in either case, the tenant was himself a successor, as defined in Section 88"
Section 113 of the 1985 Act provides that:-
"(1) A person is a member of another's family within the meaning of this Part if -
a. he is the spouse of that person, or he and that person lived together as husband and wife, or
b. he is that's person's parent, grandparent, child, grandchild, brother, sister, uncle, aunt, nephew or niece.
(2) For the purposes of Section (1)(b) -
(a) a relationship by marriage should be treated as a relationship by blood;
(b) a relationship of the half blood shall be treated as a relationship of the whole blood
(c) the stepchild of the person should be treated as his child, and
(d) an illegitimate child shall be treated as the legitimate child of his mother and reputed father".
"(a) the tenancy vested in him by virtue of Section 89 (succession to a periodic tenancy) or
(b) he was a joint tenant and has become the sole tenant, or
(c) the tenancy arose by virtue of Section 86 (periodic tenancy arising on ending of terms certain) and the first tenancy there mentioned was granted to another person or jointly to him or another person, or
(d) he became a tenant on the tenancy being assigned to him (but subject to subsections (2) and (3), or
(e) he became the tenant on the tenancy being vested in him on the death of the previous tenant, or
(f) the tenancy was previously an introductory tenancy and he was a successor to the introductory tenancy".
"Where there is a person qualified to succeed the tenant, the tenancy vests by virtue of this section in that person, or if there is more than one such person in the one to be preferred in accordance with the following rules:-
(a) the tenant's spouse is to be preferred to another member of the tenant's family;
(b) of two or more members of the tenant's family such of them is to be preferred as may be agreed between them or as may be, where there is no such agreement, selected by the landlord".
(iii) The end of a secure tenancy following the death of a secure tenant.
"It shall not be lawful for the owner to enforce against the occupier, otherwise than by proceedings in the court, his right to recover possession of the premises."
At common law the court has no power in such a case to refuse to enforce that right by refusing to make an order for possession although it may fix a future date on which possession is to be recovered. The County Court's jurisdiction to make an order for possession is to be found in Section 21(1) of the County Court's Act 1984. The court's power to postpone the operation for an order for possession is referred to by Mance LJ in Wandsworth London Borough Council v Michalak  EWCA Civ 271 at paragraph 58 and  1 WLR 617. Section 89 of the Housing Act 1980 (which does not apply to the High Court (see Bain & Co v Church Commissioners  1WLR 24)), however, restricts the power of postponement in cases such as the instant case, where a tenancy ceased to be a secure tenancy. Section 89(1) provides that the giving up of possession shall not be postponed to a date later than 14 days after the making of the order unless it appears to the court that exceptional hardship would be caused by requiring possession to be given by that date in which event postponement is limited to six weeks after the making of the order. It is to be noted that the restrictions do not apply, inter alia, where the court had power to make the order only if it considered it reasonable to make it (see Section 89(2)(c). The Housing Act 1980 first conferred security of tenure in relation to local housing authority tenants. At the same time as providing for such security that Act also restricted the court's power at common law where there was no statutory provision for security.
iv The management and allocation of housing accommodation by local housing authorities.
"(c) occupies as a residence by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of another person to recover possession".
Thus if the Council obtained an order for possession against this claimant and the court granted a postponement of, say 6 weeks, he would not at that stage be regarded as homeless.
(See also R (Sacupima) v Newham LBC  1WLR 563 at 577h to 578d).
However, the claimant is not eligible for assistance under Part VII of the Housing Act 1996 since he is subject to immigration control within the meaning of the Asylum and Immigration Act 1996 (see Section 115) and see Section 185(2) of the 1996 Act.
The policy of the security of tenure succession provisions and Article 8 of the European Convention on Human Rights
"1. Everyone has a 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 in accordance with 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 the protection of the rights and freedoms of others".
Article 14 provides:-
"The enjoyment of the rights and freedoms set forth in this convention shall be secured without discrimination on any grounds 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."
"The reality is that Parliament has, in the provisions of Sections 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 Section 89 of the Housing Act 1980)." (See paragraph 63, my parenthesis).
"It appears to me that this is preeminently 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 1977 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, the concept comprised 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. It is understandable why Parliament wished a home not to be broken up on the death of a secure tenant when his wife or other very close relative was living with him as a member of his family at that time. It is equally understandable why Parliament decided that this privilege should not be extended to a more distant relative like Mr Michalak who was living at the secure tenant's home at the time of his death." (See paragraph 41).
Proportionality and irrationality of the decision to take possession proceedings
"Subject to and in accordance with the provisions of this part of this act, a local authority may with approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing-
(a.) residential accommodation for persons aged 18 or over who by reason of age, illness, disability or any other circumstances by need of care and attention which is not otherwise available to them×
(8)× nothing in this section shall authorize or require a local authority to make any provision authorised or required to be made (whether by that or any other authority) by or any under enactment not contained in this part of this act (Part 3)"
Section 21(1A) provides that the person to whom Section 115 of the Immigration and Asylum Act 1999 applies, as it applies to this claimant, may not be provided with residential accommodation under Section 21(1)(a) if his need for care and attention has arisen solely because he is destitute or because of the physical effects or anticipated physical effects of his being destitute. Thus, one, to whom Section 115 applies, may be owed a duty under Section 21(1) of the 1948 Act where his need for care and attention does not arise solely from destitution but also arises from illness. The claimant, so it is argued, may well, on further assessment, fall within such a category. But, a person needing care and attention which could be provided in his own home or in a home provided by local authority under the housing legislation is not entitled to accommodation under Section 21 (see paragraph 26 in the speech of Lord Hoffman in R (Westminster City Council) v The Secretary of State for the Home Department  1WLR 2957).
"The result is that the time which a person becomes homeless as a result of a court order under the Housing Act 1988 is the same as the time a person becomes homeless as a result of proceedings in court for the purposes of the Protection From Eviction Act 1977"
Can the claimant raise issues of proportionality under Article 8 and of rationality as a defendant in proceedings for possession in the County Court?
It ruled that the County Court
"merely provided the forum for the determination of the civil right in dispute between (the landlord and tenant)" (see page 155).
Further, it concluded that the interference with the applicants right for respect for her home, which the forfeiture of the lease engendered, conformed with Article 8(2):-
"As a measure which was in accordance with the law and necessary in a democratic society for the protection of rights of others".
Thus, in proceedings between private parties, when a court enforces a possession order without considering proportionality it does not act incompatibly with Convention rights because it is merely giving effect to a domestic system of law which itself is not disproportionate.
"The objective justification for the possession order lies in the statutory arrangements devised by Parliament for identifying who may succeed to secure tenancy 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 it need not always be demonstrated on a case by case basis." (Paragraph 46).
Later he pointed out that the Council could always rely on the statutory framework of the scheme for secure tenancies as a reason for deciding to seek possession. (See paragraph 50). In other words it is the scheme itself which provides justification for the Council seeking to obtain possession. At paragraph 78 Mance LJ said:-
"The scheme of Sections 87 and 113 of the 1985 Act deliberately excludes a person in Mr Michalak'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 every 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 in so far 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, a challenge by way of juridical review, probably on the expanded basis mentioned in ex parte Daly".
"The scope for some free standing argument, in so far as it would result in some form of security of tenure, based simply on those words of the article (Article 8(2)) is now, in the light of such authorities as Smart and Michalak practically impossible. ×.. the landlord and owner of property has rights, other persons in need of social housing have at the very least expectations, there is extensive legislation dealing with housing needs and extensive learning in the common law as to the rights to possession on which the legislation has placed such curbs as it thinks appropriate. The court has time and again refused to get drawn into the arguments of what has been termed the macro level, and will not allow policy considerations to come back in what has been termed as the micro level." (See paragraph 82).
"They (the cases of Poplar and McLellan v Bracknell Forest BC  EWCA Civ 510) offer strong support for the view that where Parliament has established, in the context of a particular sector in the public housing field, the scheme for the creation and distribution of housing authorities duties such that the authority is entitled (on certain conditions being met) to demand possession of let property from a tenant, Article 8(2) exonerates an authority of any liability under Article 8(1) arising from the tenancy eviction if it has acted fairly and reasonably in conformity with the scheme." (Paragraph 35).
Thus Laws LJ rejected the view that in each case the "court" was itself required to consider the necessity and proportionality of the local authorities' actions. However he then continued by considering the appropriate forum for considering the lawfulness of a local authority's decision to seek possession. In that context he said:
"I can see that if a tenant sought a judicial review upon being served with a notice to quit, the Administrative Court might now look at the case more closely than upon the conventional Wednesbury approach, not least given the recent decision of their Lordships' House in Daly×.. I can also see 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 to the proposed eviction; and the County Court 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 Housing Act 1996; and in my judgment ×. that entails the conclusion that the balance interests arising under Article 8(2) has in all its essentials been struck by the legislature." (See paragraph 40)
Later he said:-
"The other qualification is as to the venue in which, when the possession claim comes for trial, any Article 8(2) points might be taken. On my view of the substance of the case, such occasions will (or should) be very rare". (See paragraph 44).
After considering counsel for the authority's arguments that the matter could not be raised in the County Court but only in the Administrative Court Laws LJ said:-
"In my judgment this argument simply ignores the effect of the HRA. The effect of Section 6 and 8 is that a housing authority cannot lawfully obtain possession of premises, and the court should not order it, if that would be incompatible with the convention right. I shall make it clear that in my view these provisions qualify the causes of action which the common law recognises; they are not sealed in a separate compartment marked "judicial review" or anything else. In the extremely limited circumstances in which an Article 8(2) point may arise at the stage of trial of the possession proceedings, the trial judge must deal with it. But no such point arises in theses cases."
"The effect of the Michalak case is that, provided that the respondent acts fairly and reasonably, the court must, save in exceptional circumstances, proceed on the basis that the balance required be struck by Article 8(2) is struck by the scheme which the legislature has provided for possession orders to be made against trespassers in these circumstances. Laws LJ in the Smart case recognised that in rare cases the County court judge might have to consider an argument under Article 8(2). When such an argument does arise, it will often be more convenient for the county court judge to deal with it rather than to adjourn the matter so that new proceedings can be issued in the Administrative Court. I would accept that one such rare case would be where the defendant showed that there is a real prospect of success in his or her argument that to grant possession would violate his or her right under Article 8 taken in conjunction with Article 14. That threshold test was satisfied in this case so the judge was right to proceed to consider whether the arguments were soundly based."
But is to be noted that neither Waller LJ nor Aldous LJ adopted that passage and took, in the passage at paragraph 82 I have already cited, a more restricted view.