England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		15/10/2007

Mr Justice Stanley Burnton :

Introduction

1. In these proceedings the Claimant challenges the compatibility of the Demoted Tenancies (Review of Decisions) (England) Regulations 2004 ("the Regulations"), which relate to demoted tenancies subject to the provisions of the Housing Acts 1985 and 1996, as amended by the Anti-Social Behaviour Act 2003, with Article 6 of the European Convention on Human Rights. In her claim form, she submitted that:

"A review by an officer of a local authority of an earlier decision by another officer of the same authority that a person's demoted tenancy should be terminated violates Article 6 in that such a review is not carried out by an independent and impartial tribunal. The Demoted Tenancies (Review of Decisions) (England) Regulations 2004 that permit such reviews are incompatible with Article 6."

2. On the basis of this alleged incompatibility, she contends that the decision of a reviewing officer of Liverpool City Council, made in accordance with the Regulations, to seek to terminate her demoted tenancy and to obtain possession of her home is unlawful.
3. Liverpool City Council and the Secretary of State for Communities and Local Government deny that there is any such incompatibility. Liverpool contends that it has lawfully decided to determine the Claimant's demoted tenancy.

The legislation

4. Under the Housing Act 1985, all tenancies of dwelling-houses granted by local authorities (with certain exceptions listed in Schedule 1 to the Act) are secure tenancies: see sections 79 and 80. As the name indicates, secure tenants have substantial security of tenure. By section 84(1), the county court may not make an order for the possession of a dwelling-house let under a secure tenancy save on specified grounds set out in that section and in Schedule 2 to the 1985 Act. Where the authority has satisfied the court that a relevant ground for possession exists, the court retains a discretion as to whether or not to order possession, and where the grounds relied upon are those in Part 1 or Part 3 of that Schedule it must be satisfied that it is reasonable to make the order: section 84. The Part 1 grounds are the common grounds on which orders for possession are sought, such as non-payment of rent (Ground 1) and conduct that is a nuisance or annoyance to others (Ground 2). Section 85 confers powers on the court in such cases to adjourn the proceedings for such period or periods as it thinks fit, or to postpone the date for possession, or to stay or suspend execution of an order for possession on conditions as to the payment of rent and otherwise as it thinks fit; and if the conditions are complied with, the court may discharge or rescind the order for possession.
5. The Anti-Social Behaviour Act 2003 enacted new measures to address such behaviour. The measure concerned in the present case is a procedure by which a tenant of a social landlord may lose his security of tenure and, ultimately, be evicted from his home on account of anti-social behaviour by him or someone residing in or visiting his home. For this purpose, the 2003 Act amended the Housing Acts 1985 and 1996. A new species of tenancy was created, with the original and not entirely felicitous name of a demoted tenancy. By section 82A(2) of the Housing Act 1985, a local housing authority may apply to the county court for a demotion order in respect of a secure tenancy. It is a condition of the making of a demotion order that the Court is satisfied both that the tenant or a person residing in or visiting the dwelling in question has engaged or has threatened to engage in anti-social behaviour or use of the premises for unlawful purposes and that it is reasonable in all the circumstances to make the order: section 82A(4)). The effect of a demotion order is to terminate the secure tenancy and to create instead a demoted tenancy: section 82A(3).
6. Demoted tenancies are the subject of Chapter 1A in Part V of the 1996 Act. Part V is headed "Conduct of Tenants", and includes, in Chapter 1, provisions concerning introductory tenancies, and in Chapter 3 provisions on injunctions against anti-social behaviour. During the term of a demoted tenancy the tenant has none of the security of a secure tenant: the powers of the county court contained in section 84 of the 1985 Act do not apply to him. A landlord must obtain an order of the county court in order to bring a demoted tenancy to an end (section 143D(1) of the 1996 Act); but the county court must make an order for possession unless it thinks that the procedures for the termination of a demoted tenancy contained in sections 143E and 143F have not been followed. Those provisions are as follows:

143E Notice of proceedings for possession

(1) Proceedings for possession of a dwelling-house let under a demoted tenancy must not be brought unless the landlord has served on the tenant a notice of proceedings under this section.

(2) The notice must–

(a) state that the court will be asked to make an order for the possession of the dwelling-house;

(b) set out the reasons for the landlord's decision to apply for the order;

(c) specify the date after which proceedings for the possession of the dwelling-house may be begun;

(d) inform the tenant of his right to request a review of the landlord's decision and of the time within which the request must be made.

(3) The date specified under subsection (2)(c) must not be earlier than the date on which the tenancy could (apart from this Chapter) be brought to an end by notice to quit given by the landlord on the same date as the notice of proceedings.

(4) The court must not entertain proceedings begun on or before the date specified under subsection (2)(c).

(5) The notice must also inform the tenant that if he needs help or advice–

(a) about the notice, or

(b) about what to do about the notice,

he must take the notice immediately to a Citizen's Advice Bureau, a housing aid centre, a law centre or a solicitor.

143F Review of decision to seek possession

(1) Before the end of the period of 14 days beginning with the date of service of a notice for possession of a dwelling-house let under a demoted tenancy the tenant may request the landlord to review its decision to seek an order for possession.

(2) If a request is made in accordance with subsection (1) the landlord must review the decision.

(3) The Secretary of State may by regulations make provision as to the procedure to be followed in connection with a review under this section.

(4) The regulations may include provision–

(a) requiring the decision on review to be made by a person of appropriate seniority who was not involved in the original decision;

(b) as to the circumstances in which the tenant is entitled to an oral hearing, and whether and by whom he may be represented at the hearing.

(5) The landlord must notify the tenant–

(a) of the decision on the review;

(b) of the reasons for the decision.

(6) The review must be carried out and notice given under subsection (5) before the date specified in the notice of proceedings as the date after which proceedings for possession of the dwelling-house may be begun.

7. The Regulations were made by the Secretary of State under the power conferred by section 143F(3). They apply only in relation to dwelling-houses in England: separate regulations were made in relation to Wales. So far as is relevant to the present case, the Regulations are as follows:

Persons who may carry out reviews

2. - (1) A review under section 143F of the Housing Act 1996 of a decision to seek an order for possession of a dwelling-house let under a demoted tenancy ("the review") shall be carried out by a person who was not involved in that decision.

(2) Where the review is of a decision made by an officer of the landlord and is to be carried out by an another (sic) officer, the officer reviewing the decision must occupy a more senior position within the organisation of the landlord.

Notice of review

3. The landlord under the demoted tenancy shall give the tenant not less than five clear days' notice of the date of the review.

Right to an oral hearing

4. - (1) Where the tenant so requests, the review shall be by way of an oral hearing.

(2) Any such request must be made to the landlord before the end of the period mentioned in subsection (1) of section 143F of the Housing Act 1996 (time permitted for requesting a review).

(3) If the tenant makes such a request the landlord shall, when giving the tenant notice of the date of the review in accordance with regulation 3, also inform the tenant of the time and place at which the review will be heard.

Written representations

5. Whether or not the review is to be by way of an oral hearing -

 (a) the tenant may make written representations to the landlord in connection with the review;

(b) such representations must be received by the landlord not less than two clear days before the date of the review; and

(c) the landlord shall consider any such representations which are received by that date.

Review by way of an oral hearing

6. - (1) Where the review is to be by way of an oral hearing, the tenant shall have the right to be heard and to be accompanied or to be represented by another person (whether or not that person is professionally qualified).

(2) The tenant or his representative may -

 (a) call persons to give evidence at the hearing;

(b) put questions to any person who gives evidence at the hearing.

(3) Subject to these Regulations, the procedure in connection with a review by way of an oral hearing shall be such as the person carrying out the review shall determine.

8. Article 6 of the Convention provides, in so far as is relevant:

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

The facts

9. The facts are not in dispute, and I can conveniently take them from the Claimant's skeleton argument.
10. The Claimant moved into her home at 16 John Street, Liverpool, L3 8NY ("the property") under the terms of a secure tenancy that commenced on 16^th December 1985. Liverpool City Council is her landlord.
11. On 8^th June 2006 Recorder Moran Q.C. sitting at Liverpool County Court granted a demotion order to expire at midnight on 7 June 2007 on the ground that the Claimant's son had been responsible for anti-social behaviour whilst living at the property and because of his criminal convictions.
12. After the demotion order had been granted, the Council received further allegations of anti-social behaviour by the Defendant's son, and a decision was made to terminate the Claimant's demoted tenancy. The decision was made by Mr McDonnell, an officer of the Council on the basis of seven allegations of anti-social behaviour.
13. By letter dated 4^th August 2006 the Council informed the Claimant of its decision to seek possession of the property and served notice of proceedings pursuant to section 143E of the 1996 Act. The notice set out the seven allegations of anti-social behaviour relied upon by the Council and informed the Claimant of her right to request a review of the decision.
14. The Claimant contested the allegations and made a request for a review of the decision to terminate. On 17 November 2006 a review hearing took place before Mr Bill Morris, Manager of the Safer Neighbourhood Services Department, employed by the Council. He occupies a more senior position in the Council than Mr McDonnell.
15. The Claimant attended the review hearing without legal representation (I was informed by counsel that LSC funding is not available for such hearings.) Mr Morris heard evidence from a solicitor representing the Council. She presented the allegations of anti-social behaviour relied upon by the Council. Mr Morris also heard evidence from the Claimant, who disputed all of the allegations.
16. By letter dated 21^st November 2006 Mr Morris informed the Claimant of his decision and the reasons for it. He stated:

"In relation to the above review which you attended at Broughton Terrace, after careful consideration of all the facts. I have decided that a case has been made for possession of the property that you now occupy namely 16 John Street, Liverpool 3 8NY.

I have based my decision on the following facts.

1. Your son Patrick was convicted at North Liverpool Community Justice Court on 6^th September 2006 for the offences of:-

Unauthorised taking of a motor vehicle;

Breaching an Anti-Social Behaviour Order;

Use of a vehicle without Insurance or a Licence.

2. The witness statement submitted of Marie Taylor which identifies acts of anti-social behaviour committed by your son Patrick.

3. The witness statement submitted of Sue Fenney which identifies an act of anti-social behaviour committed by your son Patrick.

I am satisfied that acts 1-3 above represent further breaches of your tenancy within the 12-month period of your demoted tenancy."

17. Following the decision by Mr Morris on 4 December 2006 the Council issued a claim for possession in Liverpool County Court.
18. On 15 December 2006 this application for judicial review and for a stay of the county court proceedings was issued on behalf of the Claimant. On 21 December 2006 Liverpool agreed to stay the county court possession proceedings pending the outcome of the judicial review. The stay of proceedings was approved by District Judge Coffey on 23 January 2007.

The contentions of the parties

19. Mr Fullwood submitted:

(a) That the decision by the reviewing officer, Mr Morris, engaged Article 6.

(b) That he was not an "independent and impartial tribunal established by law", as required by Article 6.

(c) In view of the centrality of findings of fact, the availability of judicial review of his decision could not remedy his lack of independence and impartiality.

20. Mr Fullwood relied on the decision of the Court of Appeal in McLellan v Bracknell Forest Borough Council [2001] EWCA Civ 1510, [2002] QB 1129, as authority for proposition (a). McLellan concerned the statutory scheme relating to introductory tenancies, which confer no security of tenure on the introductory tenant apart from a requirement of an internal review by the local authority landlord of its decision to seek an order for possession in all respects similar to that required by the Regulations in relation to a demoted tenancy and the requirement of an order for possession made by the court. The Court of Appeal held:

(a) that Article 6 was engaged by the review decision; but

(b) that the availability of judicial review meant that the statutory scheme as a whole satisfied its requirements.

In relation to (b), Mr Fullwood submitted that the decision in McLellan has been overtaken by the recent judgment of the European Court of Human Rights in Tsfayo v UK [2007] ECHR 656, in which it held that a decision by a Housing Benefit and Council Tax Benefit Review Board ("HBRB") of a local authority to reject the applicant's claim for housing benefit was not that of an independent and impartial tribunal as required by Article 6.

21. In the Claimant's claim form, it was contended that the Regulations were incompatible with Article 6, so that no decision made pursuant to them could be compatible and lawful. Her position was formulated as follows:

"A review by an officer of a local authority of an earlier decision by another officer of the same authority that a person's demoted tenancy should be terminated violates Article 6 in that such a review is not carried out by an independent and impartial tribunal. The Demoted Tenancies (Review of Decisions) (England) Regulations 2004 SI No 1679 that permit such reviews are incompatible with Article 6."

22. On one view, Mr Fullwood departed from this general proposition in his skeleton argument:

"It is the Claimant's case that (the review procedure adopted and applied by the Council in terminating the Claimant's demoted tenancy) does violate Article 6 because (a) the decision turns on issues of fact (b) where there are issues of fact there has to be an independent fact finding tribunal (c) the demoted tenancy reviewing officer is not an independent tribunal and (d) in such cases the availability of judicial review plus the internal review procedure is no longer sufficient to satisfy the requirements of Article 6(1) following decision of the European Court of Human Rights in Tsfayo v UK."

23. On this basis, not all review decisions would infringe Article 6, but only those in which there are issues of fact, as there were in the present case. However, in the course of argument Mr Fullwood refined his submission further. Perhaps influenced by the difficulties for his case posed by the Court of Appeal decision in McLellan, he submitted that the decision in the present case infringed Article 6 because the reviewing officer did determine issues of fact. On this basis, if Mr Morris had made his decision without determining issues of fact, for example by reference to undisputed hostility or antipathy between the tenant and her neighbours, there would not have been a breach of Article 6.
24. For the Secretary of State, Mr Stilitz submitted that the statutory provisions relating to introductory tenancies are indistinguishable from those relating to demoted tenancies, and that McLellan is therefore binding on this Court. For this reason, he accepted that Mr Morris's decision engaged Article 6; but he reserved the position of the Secretary of State on this issue if this case goes to a higher court. In other words, he left open the possibility that the Secretary of State would seek to repeat the submission made by Mr Sales (who led Mr Stilitz) in McLellan that Article 6 is not engaged. Mr Stilitz distinguished Tsfayo, but by reference to paragraphs 40 to 45 of the opinion of Lord Bingham in Kay v London Borough of Lambeth [2006] UKHL 10 he submitted that if McLellan is inconsistent with Tsfayo, I am bound to follow McLellan as the domestic binding precedent.
25. Mr Burns, for Liverpool, adopted the submissions of the Secretary of State.

Discussion

(a) Is Article 6 engaged by the decision of the reviewing officer?

26. It is common ground that the Claimant's demoted tenancy confers civil rights and imposes obligations to which Article 6 applies. However, I am bound to say that if the point were free from authority I should have questioned whether the decision of the reviewing officer nonetheless does not engage Article 6. Article 6 applies only to a determination of civil rights and obligations. For the purposes of Article 6, the proceedings must be decisive for the private rights and obligations in issue: Ringeissen v Austria (1971) 1 EHRR 455. A number of cases have focused on the question whether a civil right or obligation is involved, and have perhaps focused insufficiently on the requirement that it should be the subject of a determination. It seems to me that the decision by the reviewing officer does not determine any right or liability. It is a decision that the local authority should exercise its right to apply to the county court for an order for possession. The determination of the demoted tenant's rights is made by the decision of the county court. Unless and until the county court makes an order for possession, the tenant's tenancy continues unaffected by the reviewing officer's decision. If, following a decision to seek possession, the local housing authority fails to bring proceedings for possession within 6 months of the service of the notice of proceedings for possession, the demoted tenancy reverts to a secure tenancy: see section 143B of the 1996 Act.
27. The exercise by a public authority of a right to seek a determination of an individual's rights or obligations cannot, in my judgment, itself be a determination of those rights or obligations. I see no difference between the present case and, for example, a decision by a public authority to seek an order for possession of business premises where the application of Part 2 of the Landlord and Tenant Act 1954 has been excluded, or a fortiori where Part 2 of that Act has not been excluded. The fact that the present case relates to a dwelling-house is not a material distinction: it is Article 6, not Article 8, which is in issue in the present case. Nor can it be relevant that the legislation requires a review of the decision, attended by procedural safeguards. For Article 6 to apply, the decision must have substantive legal consequences; procedural safeguards cannot, in my judgment, convert a decision that does not determine rights or liabilities into one that does.
28. It is true that, provided the procedural requirements prescribed in the legislation have been complied with, the local authority is bound to obtain an order for possession. But this is merely the converse of the Parliamentary intention, demonstrated by the terms of the legislation, that a demoted tenant should have no, or very reduced, security of tenure. Article 6 is concerned with procedure, not substance, and cannot be used to confer substantive rights, such as a right not to be evicted unless further anti-social behaviour is proved, which Parliament has not conferred.
29. Neither the decision of the House of Lords, nor indeed that of the Court of Appeal, in Begum v London Borough of Tower Hamlets [2003] UKHL 5 and [2002] EWCA Civ 239, nor that of the European Court of Human Rights in Tsfayo is inconsistent with this analysis. In Begum, the decision made by the local authority, subject to the right to appeal to the county court on a point of law, had the substantive effect of bringing its duty to provide suitable accommodation to an end: see section 193(7) of the 1996 Act. In Tsfayo, the decision of the HBRB determined the applicant's right to housing benefit: the Board decided that the applicant was not entitled to housing benefit because she had not established good cause for having made a late claim.
30. However, in my judgment this conclusion is not open to me. There is no material distinction between the legislation relating to introductory tenancies considered by the Court of Appeal in McLellan and the legislation relating to demoted tenancies. The latter, enacted in the Anti-Social Behaviour Act 2003, was clearly based on the former, enacted in the Housing Act 1996. As mentioned above, both sets of provisions are in the same part of the latter enactment. Strictly, I do not think that McLellan is binding on me, since it concerned different legislative provisions. But it would, in my judgment, be offensive to any concept of judicial comity and respect for the decisions of a higher court if I were on that ground alone to depart from a Court of Appeal decision on materially identical provisions.

(b) Compatibility with Article 6

31. The conclusion that Mr Morris's decision must be held to have determined the Claimant's civil rights or liabilities however surmounts only the first hurdle facing Mr Fullwood. The second hurdle is that in McLellan the Court of Appeal decided that the provisions relating to the internal local authority review of the decision to seek possession of the property held under the introductory tenancy, together with the judicial review jurisdiction, satisfy the requirements of Article 6. The regulations relating to the internal review by a local authority of a decision to seek an order for possession, namely the Introductory Tenants (Review) Regulations 1997 (SI 1997/72), are materially indistinguishable from the like Regulations relating to demoted tenancies. The only contextual difference is that the grant by a local housing authority of an introductory tenancy does not depend on any prior misconduct by the tenant, whereas, as has been seen, a tenancy does not become a demoted tenancy unless and until the local authority satisfies the county court both that the tenant or a person residing in or visiting the dwelling in question has engaged or has threatened to engage in anti-social behaviour or use of the premises for unlawful purposes and that it is reasonable in all the circumstances to make the demotion order. But neither set of legislative provisions expressly qualifies the circumstances in which the local authority may decide to seek an order for possession. Both general principles of public law and the express conferment of a right to a review (and the fact that Article 8 rights are likely to be engaged) mean that the local authority must have a good reason to seek possession; but what constitutes good reason is left open. There is no basis for distinguishing the Regulations in question in this case and the legislation which was the subject of the decision in McLellan.
32. In McLellan, Waller LJ gave the only substantive judgment. Paragraphs 95 to 102 set out his reasons, with which the other members of the Court agreed, for holding that Article 6 was satisfied. It would be supererogatory to set out them out in full. I mention only two of the reasons given by Waller LJ. First, in many cases the issues facing the reviewing officer are not between his authority and the demoted tenant, but between the tenant and her neighbours. In such a case, and the present would seem to be one, the situation is very different from that considered in Tsfayo. Secondly, it does not follow from the fact that a local housing authority determines that there are good reasons to obtain an order for possession that it will do so. It may take into account other considerations, such as the situation of young children living in the dwelling-house, which may lead it to consider whether there is an alternative to eviction.
33. Waller LJ's general conclusion, which I am bound to accept and to apply, and with which I respectfully agree, was stated as follows:

101. .., it is my view (i) that there is no reason to hold that the review procedure cannot be operated fairly, and (ii) that there is no reason to hold that the remedy of judicial review will not provide an adequate safeguard to tenants enabling them to challenge any unfairness and/or any infringement of their Convention rights particularly under article 8.

102 Thus, as it seems to me, it cannot be said that section 127 or the scheme at the macro level is incompatible with article 6.

34. I do not think that the decision of the European Court of Human Rights in Tsfayo would lead to a different conclusion, even if it were binding on me. Quite apart from the difference in the effect of the decision of the HBRB as against the decision in question in this case, in Tsfayo the decision maker was very much judge in its own cause. The Board consisted of elected members of the local authority which was itself liable to pay 95 per cent of the housing benefit claimed by the applicant. The position of a local housing authority seeking to protect its other residents and its estate against anti-social behaviour is very different. Secondly, the decisions made by HBRBs were held by the Court to turn entirely on questions of fact: see paragraph 46 of the judgment:

"The HBRB was deciding a simple question of fact, namely whether there was 'good cause' for the applicant's delay in making a claim."

As I have pointed out above, that is not the position in relation to demoted tenancies.

35. I add that I accept Mr Stilitz's submission that if there were a conflict between McLellan and the later decision in Tsfayo, as a matter of precedent it would be my duty to follow McLellan.
36. As mentioned above, Mr Fullwood sought to distinguish McLellan on the ground that in this case the reviewing officer made findings of fact and based his decisions on them. However, the Court of Appeal had in mind such cases: see paragraph 31 of the judgment of Waller LJ, in which he refers to the case of Johns as exemplifying matters that can occur under the introductory tenancy scheme. The reviewing panel in that case had found that she had allowed her visitors to cause a nuisance to other residents. There is no suggestion in the judgment of Waller LJ that a different conclusion should be reached in such a case from that applicable where there is no such finding; to the contrary, it is clear that he intended his general conclusion to be applicable to such cases. At paragraph 97 he said:

There may however be circumstances of a more difficult nature. If the council in providing reasons alleges acts constituting nuisance, and if the allegations themselves are disputed that at first sight seems to raise issues of fact. But under the introductory tenancy scheme it is not a requirement that the council should be satisfied that breaches of the tenancy agreement have in fact taken place. The right question under the scheme will be whether in the context of allegation and counter-allegation it was reasonable for the council to take a decision to proceed with termination of the introductory tenancy. That is again a matter which can be dealt with under judicial review either of the traditional kind or if it is necessary so to do intensified so as to ensure that the tenant's rights are protected.

Precisely the same comment applies to the demoted tenancy scheme.

37. Moreover, there is a principled reason why this suggested distinction cannot assist the Claimant. The application of the requirement of an independent and impartial tribunal in Article 6 cannot depend on the reasons give by the tribunal for its decision (unless of course they demonstrate that the tribunal was personally partial or lacked the requisite degree of independence). The requirements of Article 6 must be ascertained and ascertainable before the proceedings begin, and cannot depend on the basis of the findings of the tribunal. A tribunal that complies with the requirements of Article 6 (provided the requisite degree of judicial review is available) if it bases its decision on an appreciation of facts that are not in dispute (e.g., the antipathy between a tenant and her neighbours arsing from the tenant's previous anti-social behaviour) cannot cease to be compliant because instead it finds that there have been further instances of such behaviour.

Conclusion

38. For these reasons, in my judgment the contention that the proceedings conducted or the decision made by Mr Morris infringed the Claimant's rights under Article 6 is ill-founded.
39. I add that even if I had found that the decision made by Mr Morris infringed the Claimant's Convention rights under Article 6, I should not have made a declaration that the Regulations are incompatible. There are two reasons for this. The first is that the Regulations do not compel a local housing authority to instruct one of its officers to carry out the review. It follows that it could instruct someone other than one of its officers (such as an officer or another authority, or a solicitor or barrister instructed for that purpose) to do so. Whether that would be satisfactory to the authority in relation to the policy considerations involved in the decision is another question, which is irrelevant to the question of incompatibility. Secondly, I do not see how the requirements of section 4(4)(b) of the Human Rights Act 1998 could be satisfied.
40. For the reasons set out above, the claim for judicial review will be dismissed.