England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		5 May 2009

1. MR JUSTICE COLLINS: This claim was commenced in the Leeds County Court on 26 June 2007. By it, the claimant, which is responsible for managing property belonging to the Ministry of Defence (including residential property), to house members of the Armed Forces and their families, seeks possession of premises in Leeds in which the defendant and members of her family are living, and the claimant also seeks damages for use and occupation.
2. On 3 September 2007 a defence and counterclaim were served. The defence asserted that it was unreasonable, and so unlawful to have brought the claim for possession, and it would constitute a breach of the defendant's Article 8 rights under the European Convention on Human Rights. It was said that the defendant recognised that only the High Court could deal with that matter, and so an order for transfer was sought. The basis of the claim was that no assured tenancy could be made and so there was no protection against eviction. The most that the court could do was to impose a six-week suspension on any possession order. The reason for that is because the tenancy comes within paragraph 11 of Schedule 1 to the Housing Act 1988, which lists tenancies which cannot be assured.
3. Paragraph 11(1) covers tenancies under which the interest of the landlord belongs to Her Majesty in right of the Crown or to a government department or is held in trust for Her Majesty for the purposes of a government department. As a result, by an order of 22 November 2007, HHJ Grenfell transferred the case to the Administrative Court.
4. The law is by no means straightforward, there being three decisions of the House of Lords and a helpful recent decision of the Court of Appeal which seeks to explain and give guidance in the way to apply those House of Lords decisions.
5. The history of this case can be shortly stated. The first defendant was married to an army officer. He was a alcoholic and had been violent to her, and had abused one of her two daughters. He resigned in July 1989 following a court martial which found him guilty of ungentlemanly conduct. The Army thereafter no longer had any duty to house the first defendant, but on compassionate grounds, because of her husband's misconduct towards her and the family, it was arranged that she should move to Leeds where the children attended a boarding school. They were twin girls aged 13 at that time.
6. The premises in Leeds where they were housed were said to be temporary until she could obtain housing through the Council. She herself suffers ill-health. Her health has deteriorated over the years and she is now registered disabled. She has to use a wheelchair because she has various conditions which I do not need to itemise. Her two daughters live with her: one suffers from some mental health problems; the other, who is a carer for her mother and her sister, has an 11 year-old son who suffers from Crohn's disease. The difficulties in finding suitable accommodation for the family are all too obvious, and it is clearly important that they should be kept together.
7. There was requested an anonymity order so that the family should not be identified, particularly because of the damaging effect upon one of the daughters on the defendant herself, and on her young granddaughter. I made that order, and I would ask therefore that any report of this case be on the basis that their identities are not disclosed, and obviously the actual address is not disclosed, although there is of course no reason not to refer to Leeds, if that is thought appropriate, Leeds being a relatively large city.
8. They moved in in September 1989. The defendant was informed that she was regarded as what was called an irregular occupier. The licence to occupy was said to be terminated on 26 September 1990. Eventually court proceedings were taken, and a possession order was granted in July 1993. There were attempts then to find alternative accommodation. An offer was made but was turned down, as it was said to be unsuitable for wheelchair use. There was some correspondence in respect of this.
9. On 19 July 1994 a letter was sent from the headquarters of the Eastern District of the Army stating that the defendant was ill-advised to reject the offer because she had removed herself from the Leeds Council priority housing list, and the only alternative, it was suggested, was a possibility of renting or purchasing in the private sector. It was asserted that she had been rejecting all attempts to provide help and advice, and in the absence of a specific plan to obtain alternative accommodation, there was no alternative but to apply for a warrant of possession. That was a letter sent to her then solicitors.
10. In December 1994, a further letter was sent indicating that the Army would do everything they could to help in a difficult situation, but asking for a medical report, and an indication of what steps would be taken. In fact, nothing appears to have happened. The defendant and his family remained in occupation.
11. In September 1996, there was a general overhaul by the Ministry of its property and the way that it was to be managed. This involved a sale and lease back to an organisation called Annington Homes. In October 1999 it was said that possession was required as this particular dwelling was surplus to requirements for the Ministry, and would be handed back to Annington Homes. Thus, on 4 November 1999 a fresh notice to quit was served. By now of course the defendants had been living in this house for some ten years, and the claimant had done nothing beyond what had been done back in 1993 and 1994 to seek either to find or to help them to find somewhere else or take steps to evict.
12. Following that, there was a further delay, and on 13 July 2001 a warrant for possession was sought based on the order made back in 1993. This was refused by the court because, it was said, not surprisingly, that a fresh tenancy had been granted. Again, nothing was done by the claimant until November 2005 when a notice to quit was served. It was appreciated that there was a need to act sympathetically.
13. There is a statement on behalf of the claimant by a Mr Christopher Duke, who is the Assistant Director of Housing, and has worked for the claimants since 1982. He says this in relation to the service of the notice to quit in 2005:

"30. By 2005 the need for defence housing in the Leeds area had increased (although in the country as a whole there was a surplus). Leeds had been a very fertile recruiting area for the armed services between 2000 and 2005. As a result a number of officers had been posted to the Armed Forces Careers Office in Leeds. A number of Territorial Army Officers had also been posted to the area in 2005 which put extra pressure on the housing resource.

31. Due to the lack of available housing in Leeds, the claimant had been forced to resort to renting accommodation in the private sector."

He points out that that costs more than leasing from Annington Homes, and the standard basis obtainable in the private sector is for rentals for six-month fixed terms. He goes on:

"The MOD is at risk in these circumstances as landlords are able to recover possession of properties 'mid-tour'. This in turn results in a move for the service occupant with all the disruption this will cause to family life and schooling, which inevitably has a detrimental impact upon morale."

14. He says that because of the increase in need for defence housing, and because the defendant appeared from the records as an irregular occupier, he was instructed to recover possession. He recognised that there was a duty to consider if and how the claimant could assist the defendant through the process of recovery of possession. He conducted a review to ascertain whether she was prepared to make efforts to help herself to find alternative accommodation. It was then for the first time that he discovered who actually was living at the premises, and the health problems and the care that was being carried out by one of the two daughters.
15. He says that, in April 2007, he had a meeting with the Leeds Social Services in order to ensure that the Council would actively assist with the problem of finding somewhere to live. The note of the meeting records:

"Whilst unable to force help upon the family [the representative of Leeds Social Services] offered to write to [the defendant's] daughter advising that he was aware of the MOD's intent to seek repossession of the property and offering help and advice on rehousing. He would advise [Mr Duke] of any response but asked that [Mr Duke] kept him informed if and when a court order for eviction was issued. [He] was concerned at the reported living conditions for the child and asked for the notes completed in April 2005 (when [the claimant's] staff last gained access to the property) for his records. He also asked for the name and address of the solicitor ..."

16. It is apparent that, as time passed, there was a concern expressed by the claimants about the presentation of the efforts to evict the defendant. It was appreciated that there could be matters raised which would put the claimants in something of a bad light. It was said in a note made by Mr Duke that it was recognised, importantly, that Leeds City Council would only deal with the defendant and potential need for specialist housing as a priority if an order for possession was granted against her. The Council would have a duty under Part 7 of the Housing Act because the claimant and her family would be homeless if evicted, and clearly would be unintentionally homeless. The obligation under the Housing Act would arise because equally it was apparent that the defendant was a person in priority need, having regard to her disabilities and also the problem in relation to her daughter and her grandson, who were part of the family living with her. But the Housing Act duty only arises if there is a threat of homelessness, and the period within which the duty begins to arise is 28 days from the actual threatened eviction. Thus, there is no positive duty upon the City Council to do anything until that 28-day period starts to run. Of course, once there is a possession order, then clearly steps would have to be taken.
17. At the end of the note to which I have referred, Mr Duke, under the heading "Presentational Issues", says:

"The action to seek possession is likely to attract adverse publicity for MOD especially as the outcome is likely to result in [the defendant] losing her home. It is felt that the risk can be mitigated when MOD discusses the case informally and sympathetically with Leeds City Council in an effort to source alternative and suitable disabled accommodation whilst the possession action is pursued. Unfortunately, MOD will have to complete the possession action regardless as, under current rules, Leeds City Council can only give [the defendant's] case priority when an order for possession is made against her. It should be noted that even when a possession order is given, MOD would have to return to court to seek its execution if [the defendant] did not leave voluntarily. It is recommended that the local MP ... is notified of MOD's intents including the aforementioned discussions with Leeds City Council. (A draft letter from the US of S to [the MP] is attached."

18. That letter stated that the Ministry intended to take legal action through the County Court against the defendant, who was seriously in arrears with rent amounting to in excess of £6,200. Notice to quit had been issued, but she still remained in possession. She was disabled and now shared with her daughter and grandson. She had not allowed the Ministry to carry out any maintenance to the property for a number of years, and there were serious concerns as to the condition and safety of the property, and that attempts would be made with the City Council to assist in sourcing alternative and suitable disabled accommodation, but the Member of Parliament should be made aware that in a previous attempt to secure possession, the defendant had refused the offer from Leeds of suitable accommodation. It was said that the possession was required for operational reasons.
19. That approach and that letter was, to say the least, unfortunate because it was not accurate. The alleged rent arrears in fact had arisen because the claimants had refused to accept any payment, taking the view that, if they did, they would create a tenancy. Of course, they could have treated her as a tolerated trespasser, but to suggest that that was a basis for seeking possession was, to say the least, not entirely accurate.
20. They also asserted that she had not allowed the Ministry to enter and carry out any maintenance. That was a matter which was very much in issue and the defendant denies that that indeed is the true position. Finally, she refused the previous offer of accommodation because the property which was on offer was not suitable. That at least was her contention. So again there was an issue about that.
21. It is apparent that there is an interference with the defendant and her family's Article 8 rights. There was a directions hearing held before Wilkie J on 29 September 2008, and an amendment to the defence and counterclaim reflected the most recent decision of the House of Lords. Wilkie J set out a usual timetable for the service of evidence, skeleton arguments and so on, but he refused a request for an expert report on the defendant's care needs. There was an attempt to appeal against that refusal. That was refused on 16 April 2009. Since there is no issue but that the claimant is disabled and thus would be in priority need, it seems to me that an expert's report would not help so far as this claim is concerned. It clearly would help when the question of seeking suitable accommodation arises and will possibly be material for Leeds Council to take into account when it has to decide that question.
22. The re-amended defence and counterclaim also raised the disability equality duty under section 49A of the Disability and Discrimination Act 1995 (as amended). Section 49A, so far as material, provides:

"(1) Every public authority shall in carrying out its functions have due regard to-

...

(d) the need to take steps to take account of disabled persons' disabilities, even where that involves treating disabled persons more favourably than other persons."

23. As will become apparent, it does not seem to me that that adds anything to the defendant's case. The Ministry recognises that she is disabled and has recognised at all material times that they must assist, so far as they are able, in helping her to find suitable alternative accommodation, again with the assistance of the City Council. But to suggest that section 49A enables someone who otherwise would fail to have any defence to a possession order nonetheless to remain is to take that much too far.
24. Unhappily, the law is, despite three relevant decisions of the House of Lords, far from as clear as it should be. It is apparent that public law defences based on alleged irrationality of a decision to seek possession can be raised before the County Court as a defence (see, for example, Wandsworth LBC v Winder [1985] AC 461). But what is less clear is what can amount to such irrationality. The issue was first raised before the House of Lords in Harrow Borough Council v Qazi [2004] 1 AC 983. All I need to say about that case is that it decided that Article 8 could not be relied on to defeat a proprietary or contractual right to possession. That was a decision by a three to two majority.
25. However, shortly thereafter, the European Court of Human Rights in Connors v the United Kingdom [2005] 40 EHRR 185 cast doubt upon the correctness of that approach. The Connors case concerned a gypsy who had had no chance to challenge the basis of the decision to evict, which was in that case alleged misconduct. That inability was said by the European Court to be wrong, and to render the interference with his Article 8 rights disproportionate. However, in Blecic v Croatia [2004] 41 EHRR 13, the European Court of Human Rights recognised a wide margin of appreciation in enabling a member state to apply a particular housing policy. The facts in Blecic were that the applicant had held a specially protected tenancy in a publicly owned flat in Croatia. In July 1991, she went to stay with her daughter in Rome for the summer leaving her furniture and belongings in the flat. By the end of August the armed conflict had escalated, and from mid-September the town in which she had lived was exposed to constant shelling and the supply of water and electricity was disrupted. In October 1991, her pension was stopped and she lost the right to medical insurance. The following month her flat was broken into and occupied by a family. She decided, because she had no means of subsistence, had no medical insurance, and was in poor health, to stay in Rome and did not return to her home town until May 1992.
26. In February 1992, the local authority had brought an action against her for termination of her tenancy on the ground that she had been absent for more than six months without justification. The court terminated the tenancy, finding that her reasons for non-use were unjustified. That judgment was quashed on appeal, and the case remitted to the First Instance Court, but eventually the Supreme Court ruled against her and the Constitutional Court held that her rights had not been violated. The court agreed that her rights had not been violated, and the basis upon which that decision was reached is set out in paragraphs 65 and 66 of the judgment, which read as follows:

"65. State intervention in socio-economic matters such as housing is often necessary in securing social justice and public benefit. In this area, the margin of appreciation available to the State in implementing social and economic policies is necessarily a wide one. The domestic authorities' judgment as to what is necessary to achieve the objectives of those policies should be respected unless that judgment is manifestly without reasonable foundation. Although this principle was originally set forth in the context of complaints under Article 1 of Protocol No. 1 – in, for example, James and Others v the United Kingdom, judgment of 21 February 1986 ... and Mellacher and Others v Austria, judgment of 19 December 1989 ... the Court, bearing in mind that the Convention and its Protocols must be interpreted as a whole, considers that the State enjoys an equally wide margin of appreciation as regards respect for the home in circumstances such as those prevailing in the present case, in the context of Article 8. Thus, the Court will accept the judgment of the domestic authorities as to what is necessary in a democratic society unless that judgment is manifestly without reasonable foundation, that is, unless the measure employed is manifestly disproportionate to the legitimate aim pursued.

This margin is afforded both to the domestic legislature ("in accordance with the law") and to the bodies, judicial amongst others, that are called upon to interpret and apply the laws in force ...

66. In the light of the foregoing, the Court is satisfied that the contested decisions were based on reasons which were not only relevant but also sufficient for the purposes of paragraph 2 of Article 8. It cannot be argued that the Croatian courts' decisions were arbitrary or unreasonable, or that the solution they reached in seeking a fair balance between the demands of the general interest of the community and the requirement of protecting the applicant's right to respect for her home was manifestly disproportionate to the legitimate aim pursued. The Court considers that, when terminating the applicant's specially protected tenancy, the national authorities acted within the margin of appreciation afforded to them in such matters."

27. Note the use of the adverb "manifestly" when describing what was disproportionate. That suggests that the court was applying a somewhat higher level than the normal proportionality test applicable in these cases.
28. Following Connors in particular, the matter was reconsidered by the House of Lords in Kay v Lambeth [2006] 2 AC 465. There were in fact two cases heard together: Kay v Lambeth and Leeds City Council v Price. The facts of Kay are more material to the circumstances of this case. The other case, Price, involved a gypsy. The headnote indicates the facts of Kay:

"... the local authority, in 1979, informally made available to a housing trust some of its "short life" housing which was unsuitable for use as general housing stock. The housing trust made the housing habitable and used it to accommodate homeless people who would not otherwise have qualified for housing. The arrangement between the housing trust and the occupiers purported to be a licence, not a tenancy. In 1986 the local authority granted the housing trust a written licence to use the properties, terminable on three months' written notice and in 1995 the licence was replaced by head leases granted to the housing trust in respect of each of the properties for a period of ten years terminable on six months' notice by either party. In 1999 the House of Lords held that the occupiers were secure tenants, not licensees, of the housing trust. In response to the decision the local authority terminated the head leases in accordance with their terms and began possession proceedings in the county court against the defendants on the ground that they occupied the properties as trespassers. In preliminary rulings the judge held that the local authority was not bound by the secure tenancies granted by the housing trust and he struck out their defences, based on article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, that their right to respect for their homes was infringed by the local authority's claims for possession. The Court of Appeal affirmed the judge's decisions."

29. The House of Lords' decision was by a majority of four to three. It was decided, so far as material, that the right of a public authority landlord to enforce a claim for possession under domestic law would, in most cases, automatically supply the justification required by Article 8(2) for an interference with the occupier's right to respect for his home. The public authority was not required to plead or prove justification in every case, and the courts were to assume that domestic law struck the proper balance of the competing interests and was compatible with Article 8. A challenge to the making of an order could be raised in the possession proceedings in the County Court, so far as its jurisdictional limits permitted it, if the defendant could exceptionally show a seriously arguable case that the relevant domestic law was incompatible with the Convention, but that, and this was the majority holding, where the requirements of the law had been satisfied and the right to recover possession was unqualified, no challenge based only on a defendant's individual circumstances was permissible.
30. Lord Bingham, who was in fact, in the end, one of the minority, sets out in paragraph 22 at pages 488 and 489 the various relevant Strasbourg decisions, in particular Connors and Blecic to which I have already referred. A distinction drawn between Connors and Blecic was that in the Connors case no opportunity had been given to the applicant to challenge the matters relied on, which were alleged to amount to misconduct which justified bringing to an end his occupation; whereas in Blecic the applicant laboured under no such disadvantage and the court decided clearly that the facts justified the decision which had been reached by the court.
31. Lord Bingham, in paragraph 29, having considered all these various authorities, said this:

"It necessarily follows, in my judgment, that where a public authority seeks to evict a person from premises (which may be land where a traveller has pitched his caravan) which he occupies as his home, that person must be given a fair opportunity to contend that the excepting conditions in article 8(2) have not been met on the facts of his case. I do not accept, as the appellants argued, that the public authority must from the outset plead and prove that the possession order sought is justified. That would, in the overwhelming majority of cases, be burdensome and futile. It is enough for the public authority to assert its claim in accordance with domestic property law. If the occupier wishes to raise an article 8 defence to prevent or defer the making of a possession order it is for him to do so and the public authority must rebut the claim if, and to the extent that, it is called upon to do so. In the overwhelming majority of cases this will be in no way burdensome. In rare and exceptional cases it will not be futile."

32. The schedule to the Act, which sets out the various cases in which no security of tenure can be granted, strikes the necessary balance, and it would only be an exceptional case that, on its facts, enabled a defendant to assert successfully that, notwithstanding the power to evict, that power should not be exercised.
33. In paragraph 38 on page 495 Lord Bingham says this:

"I do not think it possible or desirable to attempt to define what facts or circumstances might rank as highly exceptional. The practical experience of county court judges is likely to prove the surest guide, provided always that the stringency of the test is borne in mind. They are well used to exercising their judgment under existing statutory schemes and will recognise a highly exceptional case when they see it. I do not, however, consider that problems and afflictions of a personal nature should avail the occupier where there are public services available to address and alleviate those problems, and if under the relevant social legislation the occupier is specifically disentitled from eligibility for relief it will be necessary to consider the democratic judgment reflected in that provision. Nor can article 8 avail a tenant, otherwise perhaps than for a very brief period, if he can be appropriately accommodated elsewhere (whether publicly or privately)."

34. The leading judgment of the majority is that of Lord Hope. At paragraph 66 to 67, he said this:

"The jurisprudence of the Strasbourg court indicates that three requirements must be met under article 8(2) in cases where a possession order is sought before it can be held that the interference with the exercise of the right to respect for the home that will result from the making of the possession order is justified ...

The first question is whether the interference is "in accordance with the law". As article 12 of the Universal Declaration of Human Rights which was adopted by the General Assembly of the United Nations in 1948 puts it, no one shall be subjected to arbitrary interference with his home. The requirement that any interference must be in accordance with the law meets the point that it must not be arbitrary. The next question is whether it has an aim that is identified by that paragraph as a legitimate one. Satisfaction of the housing needs of others is regarded as a legitimate aim for this purpose, because it was intended to promote "the economic well-being of the country" and "the protection of the rights of ... others": Blecic v Croatia 41 EHRR 185, para 58. In Connors v United Kingdom 40 EHRR 189 the legitimate aim pursued by the interference was "the protection of the rights of ... others" - other occupiers of the site and the public authority as its owner and manager: para 69. It is hard to conceive of a case where this requirement would not be met where a landowner seeks to vindicate his right to obtain an order for possession of his property on the grounds that all the requirements that the law lays down for recovery of possession from its occupier by means of a court order have been satisfied. The final question is whether interference in pursuit of that aim is "necessary in a democratic society". The notion of necessity implies a pressing social need, and the measure employed must be proportionate to the legitimate aim pursued: Blecic, para 59. In this context a margin of appreciation is allowed to the

government of the contracting state. The scope of this margin of appreciation will depend not only on the aim of the interference but also, where the right to respect for the home is involved, the importance of that right to the individual: Gillow v United Kingdom (1986) 11 EHRR 335, para 48; Blecic, paras 59, 60. This is the only area for legitimate debate in cases where the other requirements have been satisfied.

67. But, as I shall seek to show in the following paragraphs, Connors is the only case where the Strasbourg court has held that the making of a possession order against an occupier in favour of a public authority in accordance with the requirements of domestic property law has failed to meet the third requirement in article 8(2). It failed to do so in that case because the making of the order was not attended by the procedural safeguards that were required to establish that there was a proper justification for the interference with the applicant's right to respect for his private and family life and his home. So it could not be regarded as justified by a pressing social need or as proportionate to the aim being pursued: para 95. The point of that case, however, was that the law enabled the public authority to evict the applicant from the site which he had been given a licence to occupy without giving reasons which could be examined on their merits by an independent tribunal. There were exceptional circumstances, but it was the law itself that was defective. The margin of appreciation within which in spheres such as housing the judgment of the legislature will be respected did not save it from this criticism: para 82. It leaves untouched cases, of which Qazi is an example, where the judgment of the legislature on issues of property law meets the third requirement of the article.

35. Lord Hope expressed agreement with Lord Scott, Lady Hale and Lord Brown, who with him formed the majority, but he went further and indicated that a challenge which was not to the law under which the possession order was sought, but was based only on the occupier's personal circumstances should be struck out. It would need a seriously arguable case of irrationality to permit any claim to go forward.
36. Then in paragraph 114, Lord Hope said this:

"There may, however, be cases like Connors where the incompatibility with the article 8 Convention right lies in primary legislation which the county court is being asked to apply to the case by the public authority: see para 86. In such a case it would be open to the High Court to make a declaration of incompatibility, if it was not possible to read or give effect to the legislation under section 3 of the Human Rights Act 1998 in a way which was compatible with the Convention right. But the legislation would nevertheless still have to be enforced, unless the decision of the public authority to seek to enforce it when faced with that incompatibility could be said, when judicially reviewed, to be arbitrary, unreasonable or disproportionate. The decision could not be held in the county court to be an unlawful act within the meaning of section 6 of the 1998 Act: see section 6(2)(b). The fact that the question of incompatibility that was raised in Connors was not capable, under the domestic system, of being dealt with effectively in the county court because of the limits on its jurisdiction reinforces, rather than detracts from, the proposition that a defence which is raised in that court under article 8 should be struck out unless the legislation can be read and given effect in a way that is compatible or it raises an issue as to its incompatibility that ought to be considered in the High Court."

37. Article 8, of course, does not confer a positive right to be housed, merely a right not to lose housing unless that loss is compliant with Article 8 rights. Lord Brown recognised that Strasbourg jurisprudence required some qualification on the Qazi principle, but he could not accept that it required consideration of an Article 8 defence every time it was raised. Although Article 8 was clearly engaged in every home repossession case, its requirements would be satisfied provided always, first, that the substantive domestic law under which the order was sought struck an acceptable balance between the competing needs and right at stake, and second, that the law was properly applied by the domestic court with the occupier being given a fair opportunity to invoke any defence available to him under it.
38. Finally, in paragraph 203 Lord Brown said this:

"Of course, where the domestic law requires the court to make a judgment (most notably perhaps in those cases under Schedule 2 to the Housing Act 1985 where repossession can only be ordered if the court considers it reasonable), or to exercise a discretion, the judge will bear in mind that he is performing this task in the context of the defendant's article 8 right to respect for his home. But where under domestic law the owner's right to possession is plainly made out (whether at common law or, for example, under the legislation providing for assured shorthold tenancies or introductory tenancies), the judge in my opinion has no option but to assume that our domestic law properly strikes the necessary balances between competing interests (as envisaged in paras 32 and 33 of my noble and learned friend Lord Bingham's judgment) and that in applying it properly he is accordingly discharging his duty under section 6 of the Human Rights Act 1998. Where section 89 of the Housing Act 1980 applies, the judge will to that extent have a discretion to postpone possession. That apart, however, he has no discretion and the order must be made, leading to the eventual execution of the warrant for possession. Where no statutory protection is afforded to occupiers that should be assumed to be Parliament's will: sometimes that will be clearly evident from the terms of the governing legislation (as in the cases considered by Lord Bingham in para 35); even, however, where the owner's rights arise at common law, the absence of statutory protection must surely be, as my noble and learned friend, Lord Hope of Craighead, suggests, the result of a deliberate decision by Parliament to leave the owner's right to recover possession in these cases unqualified. As Lord Bingham of Cornhill observes, at para 36, it is not unrealistic to regard the general law as striking the required balance."

39. So that seemed to indicate that there were likely to be very few cases where the Article 8 defence could be raised with any hope of success. But this was not the end of the House of Lords' decision-making in this context. The third of the cases is Doherty v Birmingham City Council [2008] 3 WLR 636. That was another gypsy case, and the question was whether the definition of a protected site in section 5(1) of the Mobile Homes Act 1983, which excluded gypsies from statutory protection, was inconsistent with the Convention. The answer to that was "no", subject to possession being a course which no reasonable person could consider to be unjustifiable. That again was a decision by a majority of three to two, and the question that seems to have been at the forefront was whether the test should be proportionality or only the higher test of irrationality. The decision by the majority was that it was the latter.
40. The leading speech of the majority was given by Lord Hope (paragraph 33). He said this:

"The procedural safeguard that was lacking in Connors was an ability to challenge in court, by way of a defence, the allegations of misconduct that

were the basis for the authority's decision to seek the possession order against the applicant. Applied to this case, special consideration to the needs of gipsies and their different lifestyle requires that the first defendant must be able to insist, by way of a defence to the claim, that it be shown there is a proper justification for the decision to seek a possession order. It must be shown that the claimant's decision to evict him and his family from the site was justified by a pressing social need and was proportionate. If that cannot be done, there is a risk that the first defendant's rights under article 8 will have been violated."

41. He then considered the effect of section 6, in particular 6(2)(b) of the Human Rights Act 1998. That I should cite because argument based upon it has been raised by Mr Cottle. Section 6 provides:

"(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right [of course a public authority includes a court].

(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; or

(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions."

42. In paragraph 39, Lord Hope dealt with section 6(2)(b), and said:

"39. The cases in which the effect of section 6(2)(b) of the 1998 Act has been considered so far demonstrate that three distinct situations may arise. The first is where a decision to exercise or not to exercise a power that is given by primary legislation would inevitably give rise to an incompatibility. That was the situation in R v Kansal (No 2) [2002] 2 AC 69, as Moses J observed in R (Wilkinson) v Inland Revenue Comrs [2002] STC 347, para 41. The prosecutor's decision to adduce evidence of the answers which had been obtained under compulsion pursuant to section 433 of the Insolvency Act 1986 was bound to result in a breach of article 6 of the Convention. The second, which lies at the opposite end of the spectrum, is where the act or omission of the public authority which is incompatible with a Convention right is not touched by one or more provisions of primary legislation in any way at all. As the matter is not to any extent the product of primary legislation, the sovereignty of Parliament is not engaged. The act or omission will be unlawful under section 6(1) because section 6(2)(b) does not apply to it. The third situation lies in the middle. This is where the act or omission takes place within the context of a scheme which primary legislation has laid down that gives general powers, such as powers of management, to a public authority. That is the situation in this case. The answer to the question whether or not section 6(2)(b) applies will depend on the extent to which the act or omission can be said to be giving effect to any of the provisions of the scheme that is to be found in the statutes."

43. Before going further I should go back to what Lord Hope said in Kay in paragraph 110. In paragraph 110 he referred to what he described as two gateways, that is to say-

"... if the requirements of the law have been established and the right to recover possession is unqualified, the only situations in which it would be open to the court to refrain from proceeding to summary judgment and making the possession order are these: (a) if a seriously arguable point is raised that the law which enables the court to make the possession order is incompatible with article 8, the county court in the exercise of its jurisdiction under the Human Rights Act 1998 should deal with the argument in one or other of two ways: (i) by giving effect to the law, so far as it is possible for it do so under section 3, in a way that is compatible with article 8, or (ii) by adjourning the proceedings to enable the compatibility issue to be dealt with in the High Court; (b) if the defendant wishes to challenge the decision of a public authority to recover possession as an improper exercise of its powers at common law on the ground that it was a decision that no reasonable person would consider justifiable, he should be permitted to do this provided again that the point is seriously arguable: Wandsworth London Borough Council v Winder [1985] AC 461. The common law as explained in that case is, of course, compatible with article 8. It provides an additional safeguard."

44. In Doherty, Lord Hope dealt with gateway (b) -- (a) very clearly is not applicable in the circumstances of this case -- and indicated that it was designed to leave open the possibility of a challenge on public law grounds that the public authority's decision to bring the claim is so unreasonable as to be unlawful. He elaborated on that point, the point being of course that once the matter gets to court the court has no option: it is caught by section 6(1) because the law requires a possession order to be made. The only discretion that exists is that of the authority in question, in this case the claimant, to seek possession. It does not have to exercise the power that rests in it to seek possession. But if it does decide to do so, then it can, as the law appears to have been established by the majority in Doherty, do so unless it can be said that its decision to exercise those powers is Wednesbury unreasonable.
45. The minority, and I refer for example to Lord Mance in paragraphs 162 and 163 (I do not need to read them in detail), indicated that he regretted that it was not possible to modify gateway (b) generally so as to allow express regard to be had to Human Rights Convention principles in relation to any defence raised against a public authority, whether under Wandsworth or in the Qazi/Connors/Kay situation, or in circumstances that arose in the case of Doherty. He was not persuaded that any significant problems would or need arise. One of the problems that was suggested was that it would be difficult for County Court Judges to apply a consistent approach if they had to consider proportionality in the circumstances of every case.
46. I am bound to say that I very much see the force of Lord Mance's and the minority's approach in Doherty. Surely most people would consider that it was unreasonable to take action which constituted a breach of an Article of the Human Rights Convention. Nevertheless, the court at Strasbourg has clearly indicated that the test is one that requires that it be manifestly disproportionate, and that is certainly a higher test than merely disproportionate. But, again, there is no reason in principle, as far as I can see, why that test should not be as easily applied by County Court Judges as the test of irrationality. It would be for the judge to consider that matter on the facts of every case in which it was raised.
47. However, I am not able to approach the matter in that way, because the decision of the majority in Doherty's case is binding upon me, and the Court of Appeal has, in a decision reached on 3 March 2009, given guidance as to the correct approach. The case in question is Doran v Liverpool City Council [2009] EWCA Civ 146. That again was a gypsy case. But the challenge, if any challenge can be made, will be a challenge to the decision to bring the possession proceedings, not to the possession proceedings themselves. Toulson LJ gave the lead judgment in that case. In paragraph 48 onwards he said this:

"48. As I see it, the effect of Doherty is two fold.

49. First, there is no formulaic or formalistic restriction of the factors which may be relied upon by the licensee in support of an argument that the council's decision to serve a notice to quit, and seek a possession order, was one which no reasonable council would have taken. Such factors are not automatically irrelevant simply because they may include the licensee's personal circumstances, such as length of time of occupation. In Doherty, where the family had been in occupation for a substantial time without causing any trouble, but the council wanted to use the site in a different way, it might also be thought relevant whether the council had taken any steps to offer the family, or help them to acquire, alternative accommodation.

50. Secondly, the question whether the council's decision was one which no reasonable person would have made is to be decided by applying public law principles as they have been developed at common law, and not through the lens of the Convention.

51. There is no conflict between these two propositions, which should be capable of being applied without additional complexity. As Baroness Hale observed in Kay at para 190, in a passage cited by Lord Walker in Doherty at para 108:

"It should not be forgotten that in an appropriate case, the range of considerations which any public authority should take into account in deciding whether to invoke its powers can be very wide: see R v Lincolnshire County Council ex parte Atkinson (1995) 8 Admin LR 529; R (Casey) v Crawley Borough Council [2006] EWHC 301 (Admin)."

52. Having said that the question whether the council's decision was unreasonable has to be decided by applying public law principles as they have been developed at common law, it is to be remembered that those principles are not frozen. Even before the enactment of the HRA, our public law principles were being influenced by Convention ways of thinking. Since its enactment, the process has gathered momentum. It is now a well recognised fact that the Convention is influencing the shape and development of our domestic public law principles, whether one uses the metaphors of embedding, weaving into the fabric, osmosis or alignment. (See the judgment of Lord Walker in Doherty at para 109.)"

48. He then went on to consider gateway (b) and the legislative scheme. He made the point that when it came to judging whether a Council had acted in a way which no reasonable person would have done, the existence of the court's powers of suspension was an important factor. In the context of this case, a six-week suspension maximum does not seem to me to provide a very substantial protection to the defendant.
49. What is suggested in this case is that it was irrational to bring these proceedings because of a failure to appreciate the full circumstances, including the presence of the daughter with her disability. But, as it seems to me, there is no obligation on the authority in question to make that sort of enquiry. In any event, it could not in the circumstances have affected the decision since personal disabilities will not generally provide a proper basis for declining to take proceedings -- at least that is the situation as a general rule, albeit there may be cases where it would be incumbent upon the relevant authority to assist, insofar as they are able, in seeing that alternative accommodation could be provided.
50. In paragraph 67 in Doran, giving practical guidance, Toulson LJ observed:

"67. In a case arising out of phase 2 of the legislative scheme, where notice to quit has been served, but the occupier asserts that the decision to serve it and seek possession was unlawful, it is for the licensee to make good such a defence. To do so, it must be shown that the council's decision to serve the notice and seek possession was one which no reasonable council would have taken in the circumstances known, or which ought to have been known, to it at the time of the decision. This is a high test and rarely likely to be satisfied where the decision was made in good faith (for reasons more fully discussed in Smith v Evans and above)."

51. There is no doubt, as I have indicated from the history of this matter, that the claimants have not acted in a way which lives up to proper standards of good administration. There have been substantial delays for no good reason. Then there were attempts to rely on arrears of rent and inability to carry out repairs which were designed to make the decision look good in public. But despite Mr Coppel's arguments, I see no reason to reject Mr Duke's evidence of the present need.
52. The Secretary of State for Communities and Local Government has been made a second defendant because of the arguments raised in relation to the compatibility of the provisions, and he has produced a statement in which he sets out the thinking that has led to the various provisions that are made under the Housing Acts in relation to aspects of general housing management in the social housing sector. He makes the point about the inability to provide security where the tenancy is one coming within what is now paragraph 11 of Schedule 1 to the Housing Act. He refers to what was said back in 1954 in relation to non-residential properties, namely that government departments were in a different position; they were not landlords to any great extent, and they let property because it was needed for the purpose for which it was acquired or because the letting was in itself a means of carrying out statutory functions. In fact, the Ministry of Defence has the largest amount of residential properties held by any Government department, and that is because accommodation needs to be provided for a large number of service personnel, and there is a need to retain flexibility in the use of such properties for obvious reasons: because of the importance of being able to deploy and accommodate members of the armed forces quickly and in accordance with operational requirements.
53. It follows, and Mr Cottle recognises this, that the claimant cannot stay in this property forever. She cannot have security. But, having regard to the history, it seems to me that the claimants must assist in the finding of suitable alternative accommodation. Of course, they accept that they are not in the business of turning people out into the streets, but Leeds have now to undertake a homelessness duty. The problem, so far as the defendant is concerned, is that she fears upheaval. She has no wish to be moved to temporary accommodation, which would have not only an adverse effect upon her but also upon her daughter, who has apparently sadly already shown suicidal tendencies. Possession though must in due course be attained.
54. The question is, no doubt, what in the circumstances "due course" means. One has enormous sympathy, but the court cannot intervene to prevent possession being given on the basis of such sympathy alone.
55. I should add one further matter. If a defence is raised which challenges the rationality of the decision to take proceedings, it may well be that for example where misconduct is relied on as a basis for removal, or there is an issue as to the facts which were or ought to have been known to the individual claimant, it will usually be difficult for a court to decide that the decision, based as it was upon partial information, was one which was unreasonable. After all, the authority is entitled to act upon what is known to it, provided of course that it acts reasonably in all the circumstances.
56. What then is the point of the County Court deciding the facts which are unlikely to show that the decision itself was unreasonable, but may indicate that there would be a disproportionate result if an immediate possession order were obtained? The court cannot, because of section 6(1) of the Act, and indeed following the approach of the House of Lords as explained by the Court of Appeal, refuse to make a possession order, and the maximum suspension is one of six weeks. However, as it seems to me, there is a value in such a case in the court finding facts, because if it finds facts which persuade it that it would be disproportionate or unreasonable because of what comes out in the court hearing to evict, what it can do is to give an indication of its views, and in those circumstances, although suspension cannot be beyond six weeks, no doubt the decision to seek an order if the individual does not leave after the six weeks can be challenged. The actual eviction can be challenged then on the basis of the facts found by the County Court in an appropriate case. That is the value of the factual issue being decided by the County Court, even if it does not in the end lead to a decision that to take proceedings was irrational.
57. Coming back to the facts of this case, the City Council will now have to consider the question of rehousing. I fully appreciate and understand the concerns of the defendant that there should not be temporary accommodation. Although I recognise that there are potential problems, for example it would not be normally accommodation that was formally regarded as suitable or approved by Leeds, in the special circumstances of this case, it may be possible that she is allowed to remain where she is, it being regarded as the temporary accommodation provided by the Council while it seeks to carry out its duty to find permanent accommodation. Whether or not that is something which can be done remains to be seen, but the reality is that the defendant now must co-operate in the attempts to find her and her family alternative accommodation. She has no right to remain where she is, and there is no question but that the need of the Ministry to have available accommodation, including this accommodation for their purposes, is one which overrides the rights of the defendant under Article 8, or indeed any other Article of the European Convention on Human Rights. So much is clear from the approach of Strasbourg in Blecic, and from the decisions of the House of Lords and the Court of Appeal to which I have referred.
58. In those circumstances, I have no option but to make an order for possession in favour of the claimants. So far as payment is concerned, clearly there should be payment of what can be regarded as being profits or as a tolerated trespasser, or however it is described, but payments will not create any further tenancy. What I am not going to do is to make any order which enables the claimant to recover damages. Those amounts, by their own fault, were not paid. Thus, the claim for damages is dismissed, but there will be an order for possession.
59. It did occur to me whether I ought to make a 28-day order in order to trigger immediately the obligations of Leeds, but I am content to make a six-week order if the defendant would prefer that, and I would hope that Leeds would appreciate that, albeit the 28 days has not started, this is a case where clearly they are going to have to exercise their obligations, and the sooner they start to do so the better. I cannot of course force them to take action which the law does not require them to take.
60. Mr Cottle, has anything happened in the meantime since we had this hearing with Leeds? Have any steps been taken?
61. MR COTTLE: No, we have not had any indication from Leeds that that would regard the accommodation as temporary accommodation.
62. MR JUSTICE COLLINS: Of course, but my understanding during the course of argument was that they did not rule that out as a possibility having regard to the history of this case, provided of course it was not for too long a period.
63. MR COTTLE: My Lord, we have not got anything to report.
64. MR JUSTICE COLLINS: I think I will just simply leave that open. I have given my indications.
65. MR COTTLE: My Lord, I would rely on the occasions on which you clearly said, if at all possible, a move to temporary accommodation should be avoided. That is the most important part that I rely on, obviously.
66. MR JUSTICE COLLINS: That is what you put forward on behalf of the claimant and her evidence went to that, and I see nothing to contradict that.
67. MR COTTLE: We say that would be unacceptable. My Lord, while I am on my feet, there were a couple of references to 6(2) where you referred to 6(1).
68. MR JUSTICE COLLINS: Did I?
69. MR COTTLE: There were a couple. You said as a result of 6(1) they could not, but it is 6(2) that my Lord was referring to.
70. MR JUSTICE COLLINS: I am sorry, I will correct that.
71. MR COTTLE: And also there was a point about three gateways when there were two.
72. MR JUSTICE COLLINS: You are absolutely right. The trouble is I prepared this rather a time ago, and as you will appreciate --
73. MR COTTLE: It may be easier for my Lord, if we get the transcript, for us then to have an opportunity -- the only other point I am concerned about --
74. MR JUSTICE COLLINS: I will get a transcript to correct.
75. MR COTTLE: That would be the easiest way, probably. There was one point where there was a reference to the House of Lords' finding whether section 6(5) was inconsistent with whether or not -- section 5(1), sorry -- was inconsistent with Convention principles, and you said the answer was "no", and my understanding was that some of their Lordships were inclined to grant a declaration.
76. MR JUSTICE COLLINS: I know, but the majority said "no", I think.
77. MR COTTLE: My Lord, it was only on those points.
78. MR JUSTICE COLLINS: This is one of the problems with this case, we have three House of Lords' decisions which have left the law frankly in something of a mess.
79. MR COPPEL: My Lord, we apply for our costs of the action. The defendant is legally aided, so any costs order would not be enforced without leave of the court.
80. MR JUSTICE COLLINS: If you really want such an order -- are you really applying for costs?
81. MR COPPEL: Yes, my Lord. Certainly I have heard what my Lord has said about the delay.
82. MR JUSTICE COLLINS: You have not behaved very well.
83. MR COPPEL: My Lord, the delays in the matter -- as I submitted during argument, yes, we accept they were unfortunate and should not have occurred, but on the other hand they were to the benefit of the defendant.
84. MR JUSTICE COLLINS: Yes and no. That is not entirely the case because the longer she lives there and has put down roots and made her home there, the more difficult it is to move, particularly in the light of the various disabilities.
85. MR COPPEL: My Lord, it has been open to her at any stage to make efforts to move, but we know she has not done so since 1993. As to the point about rent and presenting non-payment of rent as a reason, that was not in the event the reasons which were relied on and have not been relied on in these proceedings.
86. MR JUSTICE COLLINS: It is not something that ought to have been done.
87. MR COPPEL: So, my Lord, whilst I accept that the references in the interim correspondence should not have been made, we have not attempted to rely before your Lordship on any grounds such as that.
88. MR JUSTICE COLLINS: So I should think.
89. MR COPPEL: Indeed. But on the other hand, my Lord, the defendant has persisted with the defence of this claim to the bitter end, notwithstanding --
90. MR JUSTICE COLLINS: Mr Coppel, you are entitled to an order for costs, and you are entitled to an order on the usual terms, not to be enforced et cetera. Mr Cottle, you cannot resist that as a matter of principle, can you?
91. MR COTTLE: No, my Lord.
92. MR JUSTICE COLLINS: Whether it is enforced ever is another matter.
93. MR COTTLE: That is right. It is their assessed costs, and then determination of liability is postponed.
94. MR JUSTICE COLLINS: Mr Coppel, I cannot refuse the usual order. You can have it, and you of course need the usual legal aid order.
95. MR COTTLE: Detailed assessment.
96. MR JUSTICE COLLINS: Yes.
97. MR COTTLE: I am grateful, my Lord.
98. MR STILITZ: My Lord, I should make it clear on behalf of the Secretary of State that we do not seek any consequential orders.
99. MR JUSTICE COLLINS: I did not think you would do.
100. MR COTTLE: My Lord, there is one further matter. As you are aware, Laws LJ turned down our permission application and that was in relation --
101. MR JUSTICE COLLINS: That was interlocutory really.
102. MR COTTLE: That was in relation to Wilkie J's ruling. The point about the assessment of what our care needs would be was to make the point that the temporary accommodation would not be appropriate, and my Lord has found --
103. MR JUSTICE COLLINS: This is a matter which I think, as I said, you really raise with Leeds, and you can copy it to the claimants in seeking to --
104. MR COTTLE: My Lord, there was not much surprise in the outcome of this case because my Lord was fairly clear in indications a the time, and so I hope it is not impertinent that I had prepared grounds of appeal. It is much better, should it go higher, that the higher court has your views on them. If I may hand them up?
105. MR JUSTICE COLLINS: Certainly.
106. MR COTTLE: My Lord, it will not take you long to cast your eye over of the first one.
107. MR JUSTICE COLLINS: You have shown this to the other side?
108. MR COTTLE: That is right, yes. (Pause)
109. MR JUSTICE COLLINS: I think, Mr Cottle, if you want to try and pursue those, you better pursue them in the Court of Appeal. I am not going to give permission. I think the law, so far as Doran has construed it, is relatively clear, and I do not think your disability discrimination point gets you anywhere, and you are looking at it the wrong way round. It is hardly possible to wait until suitable alternative accommodation is available when there is no obligation upon anyone to provide the suitable alternative accommodation.
110. MR COTTLE: That is the point.
111. MR JUSTICE COLLINS: The law is the other way round, and that is why I said that the claimants ought to co-operate in -- and I am sure they will; they have said they will -- in helping you obtain the alternative accommodation, but the law says it is the local authority who must provide it. But I do emphasise, and this is desperately important from your client's point of view, that she must co-operate, because if she does not, she will find herself having the worst of all worlds because there will then be no excuse really for her and no defence to being effectively forcibly evicted. I hope it does not come to that, and I am sure she will be given the most sensible advice.
112. MR COTTLE: My Lord, I do not want to take the time of the court any further, but just to make it absolutely clear, from my point of view the submission is, with respect to the court, that Doran and Doherty are decided under the umbrella of an incompatible legislative regime, hence section 6(2) immunises the authority from any attack under section 6(1) because section 6(1) clearly does not apply. We are saying there is nothing in the inability to grant an assured tenancy or an inability to grant a secured tenancy that prevents them from acting proportionately in whether or not they have to evict --
113. MR JUSTICE COLLINS: That is quite right.
114. MR COTTLE: That is the substantive point for the Court of Appeal.
115. MR JUSTICE COLLINS: I see. I think that is a bold point in the light of the House of Lords, but there we are.
116. MR COTTLE: So be it, my Lord.
117. MR JUSTICE COLLINS: I have some sympathy with that because I think, as I said, most people would regard it as unreasonable to do something which is -- and I emphasise "is" -- a breach of human rights.
118. MR COTTLE: My Lord, yes. Thank you very much for the time and consideration.