England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		28/06/2010

Mr Justice Foskett :

The applications

1. This matter comes before me by way of an application for permission to appeal against an order made by His Honour Judge Million in Willesden County Court on 7 July last year, with the appeal to follow if permission is granted. A previously expressed intention to seek permission to appeal against a further order made by the judge on 2 December last year is no longer pursued.
2. The order against which permission to appeal is sought is an order for possession of a two bedroom flat occupied by the Defendant to the possession proceedings, Mrs Lana Wilson, a 47-year old lady, who is the Applicant in the matter before me. The Claimant in the possession proceedings is the Respondent to the applications. Unfortunately, because of mental health issues on the Applicant's part, she is unable to pursue this case without assistance and does so through her litigation friend, the Official Solicitor. Before me she has had the advantage of representation by Mr Andrew Arden QC, leading Mr Ian Loveland who appeared below.

The issue

3. The principal issue is whether what has been termed the rule in LB of Hammersmith and Fulham v Monk [1992] 1 AC 478 is compatible with Article 8 of the European Convention on Human Rights ('ECHR'). A subsidiary issue is sought to be raised by way of a late amendment to the proposed grounds of appeal, namely, the argument that the decision of the Respondent to seek possession was void because, in the circumstances, it amounted to an abuse of power.
4. The principal issue has been raised recently on two occasions previously at first instance in judicial review proceedings. It was raised directly in Wandsworth LBC v Dixon [2009] EWHC 27 (Admin) when His Honour Judge Bidder QC, sitting as a Deputy Judge of the High Court, in a judgment given on 15 January 2009, held that the rule was compatible with Article 8. It was raised again in The Queen on the Application of Husband v Solihull MBC [2009] EWHC 3673 (Admin) when Beatson J, in a judgment given on 1 December 2009, held that "it is not, in the state of English law now, arguable that [the rule] is incompatible with Article 8."
5. Since, for the reasons I will set out relatively briefly, I am of the view that the rule in Monk is compatible with Article 8, it seems to me that, whilst neither my decision nor the other two to which I have referred is technically binding on other judges of first instance, the likelihood is that it will require a converse decision of a higher court before an argument to the contrary can be advanced with any realistic prospect of success. Even had I been persuaded that Monk was not compatible with Article 8, for the reasons I will give briefly in due course, I do not think it would be open to me so to hold.
6. I will deal with the subsidiary issue in due course (see paragraphs 66-78).

The general background

7. The background, to which I will refer in more detail shortly, is the familiar one of a local authority, here the London Borough of Harrow, seeking to recover possession of premises owned by the local authority and occupied by someone who, until the events that happened, was a secure tenant within section 79 of the Housing Act 1985.
8. In this case, as will appear, the local authority has for a good while been willing to re-house the Applicant in a one bedroom flat, but wants to obtain possession of a much-needed two bedroom flat for allocation to others on the lengthy waiting list. At one stage, it appeared that the proposed re-location of the Applicant would be within the same block of flats, but that turned out not to be feasible. However, the recognition of the need to re-house her in a one bedroom flat still exists. The Applicant is, however, unwilling (or unable) to co-operate in the process that would lead to that consequence.
9. The arguments advanced before the judge on the Applicant's behalf and in the Skeleton Arguments lodged in support of this application were complex and, in some respects, indigestible. This led to an order made by Burnett J on 4 March directing the lodging of a Skeleton Argument that, inter alia, identified with precision those aspects of the orders of Judge Million which were said to be "wrong" with a concise explanation of why. This led to the lodging of a "Substitute Skeleton Argument" on Monday, 10 May, which was itself still extensive, but did identify the issues more clearly. It confines the proposed appeal to the principal issue to which I have referred (and which had been the subject of argument below), but seeks to raise the subsidiary issue, as I have characterised it, not raised as such below. The Respondent to the application, the local authority, resists both grounds of the application. I have heard full argument on both aspects.
10. I need to set out the relevant history briefly.

The history

11. The Applicant became the sole secure tenant of the premises on 18 March 1992. Her then 2-year old daughter, Natasha, was with her at the time.
12. The Applicant married Michael Wilson on 26 September 1994 and asked to have a joint tenancy of the premises granted to herself and her husband. That was granted by the Respondent on 28 November 1994.
13. They continued to live there and had a daughter, to whom I will refer as 'E', in 2001. It seems that the Applicant suffered from post-natal depression after E's birth and the local Social Services became involved with the family. In 2003 Mr Wilson arranged for E to go to Jamaica to be cared for by other family members.
14. Rent arrears had begun to accrue in 2005 and continued into 2006. Through the Harrow Citizens Advice Bureau Mr Wilson took steps in May 2006 to arrange his finances so as to enable him to clear the arrears.
15. Unfortunately, the Applicant's mental health continued to deteriorate and by the end of 2006 Mr Wilson decided that he could no longer continue to live with her. During the latter part of 2006 and into the next year Mr Wilson had conversations with the local authority about how to resolve his position, those conversations being primarily with Miss Siobhan Devine, the housing management officer for the property.
16. Various discussions took place as to how the rent arrears might be cleared. An interview with Miss Devine took place on 17 October 2006 during which Mr Wilson indicated his intention of leaving the Applicant. Miss Devine and he discussed the implications of him serving a notice to quit and of him moving out without bringing the tenancy to an end. Her file note was in the following terms: "He's going to think about it but it's likely he will end the tenancy when he returns from visiting his daughter".
17. On 1 November Mr Wilson purported to end his tenancy by way of letter to Miss Devine saying that as from that day he was leaving the Applicant and that he would pay up any arrears on his return, presumably, from Jamaica. Following his return on 2 December he wrote to Miss Devine on 4 December acknowledging that he had not handed back his keys and mentioning his future requirements in relation to accommodation.
18. On 24 January 2007 Miss Devine met Mr Wilson to discuss the housing situation and the accruing arrears. He mentioned possible plans for bringing E back to the UK. He explained that he had tried to get the Applicant to focus on applying for benefits, but she would "just not listen". (This, I might add, seems to be consistent with what Mr Tom Martin, who moved into the flat soon after Mr Wilson's departure, said about the Applicant also.) He, Mr Wilson, is recorded as saying that she is "not psychologically balanced to deal with business". This assessment is consistent with the present representation of the Applicant by the Official Solicitor. Mr Wilson is recorded in the notes of this meeting as being a "bit apprehensive about ending the tenancy."
19. On 6 February Miss Devine sent a letter addressed to Mr and Mrs Wilson at the premises enclosing a Notice Seeking Possession ('NSP') on the grounds of arrears of rent.
20. On 7 February 2007 Miss Devine had another meeting with Mr Wilson and the Applicant's sister to discuss the housing situation and accruing arrears. They confirmed that the Applicant was not engaging with them and was not heeding advice to apply for and obtain benefits.
21. That day Miss Devine sent Mr Wilson another letter (enclosing a copy of the letter sent to the Applicant on the same day) referring to the arrears of rent then totalling £1175.63 and reminding him that as a joint tenant he was jointly liable for the rent. She also enclosed a blank Notice to Quit which she referred to in this way:

"I have enclosed a Notice to Quit which you may wish to serve upon the Council, as previously explained if you serve this Notice upon the Council it will end the tenancy for both yourself and your wife. Upon expiry of the Notice your wife would have no right to remain in occupation of 77 Churchill Place. I would therefore urge you to seek legal advice before making a decision on whether or not to end the tenancy. Free legal advice is available from the Housing Advice Centre, they can be contacted on 020 8861 4079."

22. The letter sent to the Applicant the same day referred to the arrears and enclosed a claim for housing benefit which Mr Wilson had completed for her. Miss Devine invited her to go to the Council Offices on 13 February with a view to assistance being offered to complete the form.
23. The Applicant did not respond to that letter, nor did she attend the appointment. The arrears continued to mount and by 25 March they were £1569.08. Miss Devine wrote again to the Applicant on 27 March but there was no response to that letter.
24. Mr Wilson had not acted on the Notice to Quit by then, but on 30 March he served it on the Council. The effect of this was to terminate the joint tenancy with effect from 30 April. The Notice to Quit contained the following notice entitled 'Important information if you have a joint tenancy':

"Please note that by signing this Notice to Quit you will end the joint tenancy and anyone in occupation of the property will have no legal right to remain there. The Council will decide if they should be granted the tenancy of this or any other property.

You may wish to seek advice from a Solicitor, the Housing Advice Centre or the Citizens Advice Bureau."

25. On 20 April Miss Devine delivered a copy of the Notice to Quit to the premises under cover of a letter explaining that the joint tenancy would come to an end on 30 April 2007 and encouraging an application from the Applicant for a sole tenancy.
26. On 24 April Mr Martin called at the Council offices and spoke to Miss Devine. He said that he was aware that Mr Wilson had terminated the tenancy, but said that the Applicant would not or could not do anything about the notice to quit. According to Mr Martin, the Applicant disposed of letters without reading them.
27. I need not trace the rest of the history in any particular detail save to note that further efforts were made to get the Applicant to make an application for a sole tenancy and, at some stage, efforts were made to have her assessed from the psychiatric point of view to see whether she was a candidate to be "sectioned". As to that matter, the view was taken that she was not. It is not in issue that when the Notice to Quit became effective, in law the Applicant became an unauthorised occupant of the premises and the Respondent had the right to claim possession (see paragraph 38 below). As I have indicated, various efforts were made by Miss Devine and members of the Applicant's family to get her to engage with the process of applying for sole tenancy. Eventually, she did do so on 18 September. That application was considered and rejected. Various other bids for one bedroom accommodation have been made on her behalf by officers within the Council.
28. A letter notifying the Applicant of the decision not to grant a sole tenancy was sent on 19 November 2007. There is, of course, little reason to think that she would have paid much, if any, attention to it. Nonetheless, the letter contained a threat to commence possession proceedings. It appears from an internal memorandum that the decision to institute possession proceedings took into account Article 8 considerations. The decision-makers within the Council had the considerations reflected in the paragraphs from the memorandum to which I will refer in mind when making that decision:

"3.4 As we would be pursuing possession through the courts we would be acting legally. Only final limb 8(2) could be used to justify evicting Lana Wilson i.e. to protect the rights and freedoms of others.

3.5 We have no apparent statutory duty to house Lana Wilson in the 2 bedroom accommodation she presently occupies.

3.6 There are 365 homeless households in temporary accommodation which required two bedroom accommodation. Granting the tenancy of a two bedroom property to Lana Wilson would deny one of these households the opportunity of a secure tenancy of this property and further delay an offer of permanent accommodation.

3.7 Additionally, it would further prejudice those existing Council tenants and those tenants of RSL's on the Housing Register who require 2 bedroom accommodation. There were at 13/08/07, 165 households on the Transfer Register seeking 2 bedroom accommodation. Their transfers would potentially be delayed by granting Lana Wilson the tenancy of this property.

3.8 There were a further 968 households on the Housing Register at 13/08/07 seeking 2 bedroom accommodation. Their prospects of receiving an offer of accommodation would be reduced by granting Lana Wilson the tenancy of this property.

3.9 Based on the facts set out above, the Council would be justified in seeking and enforcing a Possession Order against Lana Wilson to protect the rights and freedom of a significant number of other people."

29. Miss Devine sent a further letter to the Applicant on 14 January 2008 and the Particulars of Claim seeking possession were issued on 14 March 2008.
30. After a delay whilst efforts were made to identify a litigation friend for the Applicant, a Defence and Counterclaim was served in September 2008, settled by Mr Loveland, in which, inter alia, the validity of the Notice to Quit, in the sense of bringing to an end the Applicant's interest in the property, was challenged as being incompatible with Article 8.
31. On 10 November 2008 a Reply and Defence to Counterclaim took issue with the foregoing contention.
32. In due course the proceedings came before Judge Million on 10 June. He reserved judgment and gave judgment on 7 July 2009. Miss Devine gave evidence that there were 1295 households on the waiting list for two bedroom accommodation.
33. In relation to the Article 8 argument, the judge concluded that the Council had taken account of the relevant considerations and that it was not unreasonable to seek possession. It was fundamental to the Council's decision, he concluded, that the Applicant was "over housed in a two bedroom flat and that her housing needs can be met in a one bed flat". He did not accept the argument that Mr Martin's presence in the flat was essential. He did not find that Mr Martin was a "live-in carer" notwithstanding his well-intentioned desire to assist the Applicant as a friend. The judge accepted that the Applicant found it valuable to have Mr Martin help her and also that Mr Martin would continue to help her if he lived nearby. The judge concluded that Mr Martin would be likely to be offered 'over 60s housing' in the neighbourhood.
34. The judge made the order for possession and granted judgment for the arrears of rent, which were then just under £3,200.00.

The net effect

35. As a result of this process, the right of the Applicant to remain in the flat which had been her only home for just over 17 years when the proceedings took place before Judge Million was brought to an end in the formal sense by the making of the possession order. It had been her home before she married Mr Wilson and she took the perfectly natural step on her marriage of seeking to put the tenancy in joint names. The service of the Notice to Quit terminated the joint tenancy and it may be thought that as a result it is unfair that she must leave the property because of the breakdown of her relationship with him, that breakdown not arising from any deliberate action on her part, but because of the unfortunate development of her psychiatric problems.
36. I doubt that anyone would contest the suggestion that this is a "hard case" and if I had felt that the law permitted me to try to achieve a different result I might have been disposed to do so. However, merely because the result in this case seems harsh does not necessarily lead to the conclusion that the law itself is wrong. If it is, it is, in my judgment, for a higher court to say so. It should, of course, be emphasised that it is not the case that the Applicant will be homeless as a result of the order obtained by the Respondent; but it will mean that she will have to move from somewhere she has lived for a long period, possibly to somewhere further away from where she presently lives and less congenial to her. Given her mental health issues, it is obvious that this may represent a considerable hardship to her and indeed there was unchallenged evidence before the Judge from a member of the Harrow Community Mental Health Team to that effect. However, on my analysis of the law, that is not a matter which would provide any basis for the court to intervene.
37. If, of course, the rule in Monk is incompatible with Article 8 (or by giving effect to Monk without modification the court is acting in a way incompatible with the Applicant's Article 8 rights) then, of course, the position could be different. I will turn to that argument.

The Article 8 argument in the context of the rule in Monk

Introduction

38. The rule in Monk may be stated shortly. At common law, unless the terms of a tenancy agreement provide otherwise, a notice to quit given to one joint tenant without the concurrence of any other joint tenant is effective to determine a periodic tenancy: per Lord Bridge at p. 491. Where this occurs, the right to occupy the premises as a tenant by the other joint tenant ceases and the landlord obtains the unqualified right to possession. It is clear that the House of Lords considered the rule to have been one of longstanding: per Lord Bridge at pp. 485-487 and per Lord Browne-Wilkinson at pp. 492-493.
39. It is not disputed that the operation of the rule is capable of engaging Article 8 which provides as follows:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

40. In this case, of course, there is no doubt that the flat the subject of the possession order is and has been the Applicant's "home" for many years. The order, based upon the cessation of her right to occupy as a result of the operation of the Notice to Quit, will interfere with her right to occupy it. The justification for obtaining the order is that it is necessary for "the protection of the rights and freedoms of others" in the sense that her present accommodation is required for others in greater need of two bedroom accommodation.
41. The context in which Article 8 is engaged in this case is to be noted. The Respondent is a public authority. The Applicant's secure tenancy is thus with a body that is obliged to give effect to Convention rights. In their Skeleton Argument on behalf of the Respondent Mr Ranjit Bhose and Ms Jennifer Oscroft draw attention to the effect which 'horizontality' can have in this context, bearing in mind that the rule in Monk has universal application throughout the whole landlord and tenant field, including the private residential sector and the commercial and agricultural sectors. The implications in this wider context of holding the rule to be incompatible with Article 8 and, perhaps potentially Article 1 Protocol 1, needs, they submit, to be considered.
42. There may be some force in that general contention although it must be borne in mind, as Mr Arden emphasises, that Article 8 relates to a person's "home" and has no bearing on commercial and agricultural lettings. The question of the role of the rule in Monk should, I think, be confined as far as possible for present purposes to that narrow basis although the wider implications of, in effect, disregarding or re-casting the rule in other contexts cannot be ignored entirely.
43. As they correctly contend, it must be demonstrated that the operation of the rule fails to accord respect for the right to a home and that it is not necessary for protecting the rights of others so as to be justified under Article 8(2).

The general proposition

44. The bald proposition that the rule in Monk is incompatible with Article 8 was advanced in Wandsworth LBC v Dixon and rejected. In essence it is repeated in this case though Mr Arden and Mr Loveland advance it in a more refined form which provides, it is said, a solution to the problem of the ongoing liability to the landlord of the joint tenant who is renouncing his or her interest in the joint tenancy. They submit that the common law should be developed in the light of the Convention rights afforded by Article 8 so as to treat the notice to quit of one joint tenant as an act which is similar to the release or assignment of his interest to the remaining joint tenant(s) with the result that there is, it is said, no question of the joint tenant who wishes to depart (or renounce his or her interest) continuing to be bound by the terms of the tenancy, including payment of the rent.
45. Mr Bhose and Ms Oscroft submit that there are objections to this approach (i) in the general sense that, if it is a solution, it needs to fit all situations in which Article 8 is seen as an objection to the rule in Monk and, in any event, (ii) that it is not a solution permitted by the terms and policy of the Housing Act 1985. I will return to these matters having considered the more general challenge made to the rule in Monk.
46. As to that challenge, it does seem to me, with respect, to have been answered convincingly by Judge Bidder in Wandsworth LBC v Dixon. He took the view, which is contended on behalf of the Respondent in this case to be the correct view, that until the decision of the House of Lords in Harrow LBC v Qazi [2004] 1 AC 983 is said by the Supreme Court no longer to represent the law, then the argument as to incompatibility is unsustainable.
47. The rule in Monk pre-dated the incorporation of the ECHR into English law by a good many years (for a longer period than merely since Monk itself: see paragraph 38 above). In Qazi there was, as in this case, a joint secure tenancy between a husband and wife. Following her departure from the home the wife gave the housing authority notice to quit in accordance with the terms of the tenancy agreement. In accordance with Monk that had the effect of ending the joint tenancy and the husband's right to occupy the premises. On expiry of the notice to quit the husband applied for a sole tenancy, but the housing authority refused his application on the ground that as a single person he was not entitled to family-sized accommodation and they requested him to vacate the premises. He did not do so but remarried and continued to live there with his wife and family. In proceedings brought by the housing authority the husband resisted an order for possession on the ground that they were failing to give effect to his right to respect for his home under Article 8.
48. The House of Lords held by a majority (Lords Hope of Craighead, Millett and Scott of Foscote) that contractual and proprietary rights to possession could not be defeated by an argument based on Article 8. It is clear that the husband did not advance specifically the argument that Monk was incompatible with Article 8, but the essence of what was advanced was that in the light of Article 8 the consequences flowing from Monk could not be sustained. The reasoning that gave rise to this conclusion can be found in a number of passages in the speeches of the majority to which my attention has been drawn, the premise for the argument being that their Lordships plainly had in mind the effect that the rule in Monk had in the context of secure tenancies, no concerns being expressed as to that effect. I will refer to some.
49. Lord Hope of Craighead said this:

"73 The legislation relating to housing which has been enacted by Parliament is complex and much of it is designed to give statutory protection to tenants. It is necessary only to mention, by way of illustration, the discretionary grounds on which possession may be given which are set out in Schedule 2 to the Housing Act 1985 and the protection which is given to introductory tenancies in Part V of the Housing Act 1996. Where provisions of that kind are in issue, their application to the case where an order for possession is sought must be determined by the county court. In these cases the reasonableness or proportionality of making the order will arise because a decision on this point is required by the statute.

74 The present case, however, is not a case of that kind. The joint tenancy has been brought to an end by the service of a tenant's notice to quit. The position in domestic law is that in these circumstances, as a result of the joint tenant's action and in terms of the lease, the whole of the joint tenancy is terminated. So neither joint tenant has any longer any right to remain in the premises. The county court has no discretion as to whether or not it should grant an order for possession in these circumstances. In domestic law the making of an order for possession follows automatically. It has not been suggested that the fact that this is what the law provides is itself a violation of article 8. That proposition would not be sustainable in view of the fundamentally subsidiary role of the Convention, which gives special weight to the role of the domestic policy maker: see Hatton v United Kingdom (2003) 37 EHRR 611, para 97. The only question is whether it is a violation of the respondent's article 8 rights for the law to be applied as it stands to his case.

…

84 I agree … that the Strasbourg jurisprudence has shown that contractual and proprietary rights to possession cannot be defeated by a defence based on article 8. It follows that the question whether any interference is permitted by article 8(2) does not require, in this case, to be considered by the county court…."

50. Lord Millett said this:

"103 But no such balancing exercise need be conducted where its outcome is a foregone conclusion. In the present case, as in S v United Kingdom 47 DR 274, the local authority had an immediate right to possession. The premises were Mr Qazi's home, and evicting him would obviously amount to an interference with his enjoyment of the premises as his home. But his right to occupy them as such was circumscribed by the terms of his tenancy and had come to an end. Eviction was plainly necessary to protect the rights of the local authority as landowner. Its obligation to "respect" Mr Qazi's home was not infringed by its requirement that he vacate the premises at the expiry of the period during which it had agreed that he might occupy them. There was simply no balance to be struck.

…

107 It follows that I do not accept without qualification the suggestion … that, once it is established that the premises in question are the applicant's home, an order for possession amounts to an interference with (and prima facie an infringement of) his article 8 right of respect for his home. The qualification, which is built into the provisions of article 8 itself, is that save in wholly exceptional circumstances (which it has not been suggested exist in the present case …) there is no lack of respect, and no infringement of article 8, where the order is made in favour of the person entitled to possession by national law."

51. Lord Scott of Foscote said this:

125 It is, of course, the case that the United Kingdom, in common, I expect, with all other signatories to the Convention, has enacted elaborate social housing legislation. The degree of security of tenure provided to tenants of residential property on the expiry of their tenancies is highly complex. There are assured shorthold tenancies, secure tenancies, non-secure tenancies, introductory tenancies, service tenancies, furnished tenancies and, no doubt, others. The manner in which these tenancies can be brought to an end varies and depends on the contents of the relevant legislation. The respective rights of landlord and tenant, after termination of the tenancy, similarly depend on the content of the legislation. If, under the relevant provisions of the relevant legislation, the tenant has no right to remain in possession, the case is no different from that in which there is no relevant legislation at all. If, pursuant to the provisions of the relevant legislation, the tenant is entitled to remain in possession after the termination of his tenancy, there will have been a corresponding diminution of the landlord's property rights. This diminution will put article 1 of the First Protocol into play. But social housing legislation of this character is well justifiable on the public interest grounds provided for by the article: James v United Kingdom (1986) 8 EHRR 123. If, on the other hand, the tenant has no right to remain in possession as against the landlord he cannot claim such right under article 8. To hold otherwise, to hold that article 8 can vest property rights in the tenant and diminish the landlord's contractual and property rights, would be to attribute to article 8 an effect that it was never intended to have. Article 8 was intended to deal with the arbitrary intrusion by state or public authorities into a citizen's home life. It was not intended to operate as an amendment or improvement of whatever social housing legislation the signatory state had chosen to enact. There is nothing in Strasbourg case law to suggest the contrary.

…

142 R (McLellan) v Bracknell Forest Borough Council [2002] QB 1129 concerned an introductory tenancy. The tenancy had been duly terminated by the local authority landlord in accordance with the procedures prescribed by the relevant legislation. The tenant had no contractual or proprietary right, as against the landlord, to remain in possession. Counsel for the landlord submitted that "the rights of the tenant to occupy the premises were simply in accordance with [the introductory tenancy] scheme" (para 37) and that article 8 had no application. But the Court of Appeal disagreed and held that "the question to be considered is whether an eviction was in accordance with the law, and whether it was necessary for the protection of the rights and freedoms of others": per Waller LJ, in para 42. Waller LJ went on to say that even in a case where the landlord was a private landlord, in which case article 8(2) would appear to have no application, the court, as a "public authority", would have to consider, before making a possession order, whether an article 8(2) justification was established.

143 My Lords, the remarks of Waller LJ to which I have just referred, which follow with inescapable logic from the proposition that in all cases where possession is sought of property which constitutes the defendant's home an article 8(2) justification must be shown, demonstrate, in my respectful submission, why the proposition cannot be right. Waller LJ's remarks have the effect that the words in article 8(2) "by a public authority" are deleted from the article for the purpose of its application in domestic law. A court, being a public authority, cannot, it is said, give a private owner of residential property the possession order to which under the ordinary law he would be entitled against a person occupying the property as his home but who has no contractual or proprietary right to remain there, unless the making of the order can be justified under article 8(2). If this is right, it would give article 8 a significantly broader scope in its application than its language justifies. The words "by a public authority" become otiose.

144 The error is not in Waller LJ's logic, but in the proposition itself. If article 8 does not vest in the home-occupier any contractual or proprietary right that he would not otherwise have, and does not diminish or detract from the contractual or proprietary rights of the owner who is seeking possession, the problem identified by Waller LJ does not arise. The fate of every possession application will be determined by the respective contractual and proprietary rights of the parties. Article 8 can never constitute an answer. In my opinion the McLellan case, like the Donoghue case [2002] QB 48, was correctly decided but for the wrong reason.

…

151 … If Mr Qazi has no contractual or proprietary right under the ordinary law to resist the council's claim for possession, and it is accepted he has not, the acceptance by the court of a defence based on article 8 would give him a possessory right over 31 Hutton Lane that he would not otherwise have. It would deprive the council of its right under the ordinary law to immediate possession. It would constitute an amendment of the domestic social housing legislation. It would give article 8 an effect it was never intended to have and which it has never been given by the Strasbourg tribunals responsible for implementing the Convention.

152 If the reality of the matter is, as I believe it is, that an article 8 defence can never prevail against an owner entitled under the ordinary law to possession, your Lordships should, in my opinion, say so. Remission of the case to the county court for the county court to say so would be pointless….

52. Judge Bidder summarised Qazi in this way in Wandsworth LBC v Dixon:

"[The House of Lords held] that the domestic law gave the housing authority an unqualified right to immediate possession once service of the notice to quit had terminated the joint tenancy and that, since it had been clear from the tenancy at its outset that it could be so terminated (as it was in this instant case) and since the premises (once recovered) would be available for letting to other persons in need of housing within the authority's area, there was no infringement of the Defendant's article 8 right to respect for his home and that, accordingly, no question arose for determination under article 8(2)."

53. I respectfully agree with that analysis of the decision. It seems to me that the reasoning in Qazi is inconsistent with the proposition that the rule in Monk is incompatible with Article 8. Until Qazi is said not to be good law it does, to my mind, mean that any argument as to incompatibility, certainly in the specific context of social housing in the form of secure tenancies, is bound to fail.
54. Mr Bhose submits, and I agree with him, that their Lordships in the combined appeals in Kay v Lambeth BC and Leeds City Council v Price & Others [2006] 2 AC 465 did not depart from Qazi and neither did they in Doherty v Birmingham CC [2009] 1 AC 367 depart from Kay or consider that it needed revisiting in the light of the decision of the European Court of Human Rights in McCann v UK [2008] HLR 40.
55. For the reasons I have given, I consider that the law must be treated as settled in this context. Even if I had been of the view that a converse position was strongly arguable (which on the arguments advanced before me I do not), I perceive that it would have been my duty to follow the guidance given by Lord Bingham of Cornhill in Kay (endorsed by Lord Neuberger in R (RJM) v Work and Pensions Secretary [2009] 1 AC 311) which was as follows:

"43. The present appeals illustrate the potential pitfalls of a rule based on a finding of clear inconsistency …. That degree of certainty is best achieved by adhering, even in the Convention context, to our rules of precedent. It will of course be the duty of judges to review Convention arguments addressed to them, and if they consider a binding precedent to be, or possibly to be, inconsistent with Strasbourg authority, they may express their views and give leave to appeal, as the Court of Appeal did here. Leap-frog appeals may be appropriate. In this way, in my opinion, they discharge their duty under the 1998 Act. But they should follow the binding precedent, as again the Court of Appeal did here."

56. Mr Bhose advanced the further argument, to some extent developed from the legislative setting of social housing, that Parliament has had many opportunities since the Human Rights Act 1998 was implemented to reverse the effect of the rule in Monk, but has chosen not to do so. That also has force in it.
57. I will turn now to the way in which Mr Arden submits that the common law should be developed in the light of Article 8 as foreshadowed in paragraph 44 above.

The refinement of the argument

58. As foreshadowed in paragraph 44 above, Mr Arden contends that the law, developed in a way so as to give effect to Convention rights, should treat the notice to quit of one joint tenant as an act which is equivalent to the release or assignment of his interest to the remaining joint tenant(s). There are, as it seems to me, a number of internal tensions in this argument irrespective of whether it is a legitimate way of addressing the fundamental proposition that the rule in Monk is incompatible with Article 8. If, of course, rule in Monk is not incompatible with Article 8 then the issue does not arise. There is, however, inherent in the argument a rather more significant tension, namely, that if Mr Arden is right, there is a clear way of circumventing the apparent incompatibility of the rule with Article 8 afforded by the law as it stands. Whilst there is a degree of circularity about the propositions that can be advanced in this context, the short point is that if the law as it stands affords a solution to the problem said to exist, then the problem does not exist. Indeed in their Substitute Skeleton Argument, Mr Arden and Mr Loveland suggest that an assignment or release to the Applicant would have been effective and as a result an argument that it is necessary to maintain the rule in Monk also is undermined.
59. As I understand the way in which the issue has arisen in this case, it is that at one stage before the matter arrived before me, there appears to have been an acceptance that if Mr Wilson had assigned his interest in the joint tenancy to the Applicant (or that he and she together had assigned the joint tenancy to her) then the Respondent would not have had grounds for saying that she had no right to stay in the flat. Furthermore, it is also said, in relation to the particular circumstances of this case, that Mr Wilson was ignorant of the possibility of an assignment to the Applicant and had he known of it he would have taken that course. It is certainly not accepted now that Mr Wilson and the Applicant could have assigned their joint tenancy to her alone. In one sense, the point is academic unless it could be said that the Respondent owed a duty to the Applicant to advise her and Mr Wilson to execute an assignment so as to avoid the issues that have arisen.
60. Because, on the arguments I have heard, I do not consider the rule in Monk to be incompatible with Article 8, I do not see it as necessary to decide whether the suggested development of the common law is necessary to render the rule compatible. Neither is it necessary to determine whether an assignment, had it taken place, would have been sufficient to vest the former joint tenancy in the Applicant's sole name. However, I am clear that a Notice to Quit cannot be treated or construed as an assignment or release.
61. In order to accept the argument to the contrary, there can be little doubt that some relatively familiar legal concepts would have to be understood in a significantly different way from the way they have been understood hitherto. In the first place, the message conveyed to the landlord by a Notice to Quit in this context will have to be read very differently. It will be transposed from "With effect from [a certain date] I relinquish my interest in this property" to "[With effect from a certain date] I, together with my joint tenant, transfer our joint interest to my joint tenant." At, perhaps, this most simplistic level, I find it difficult to see how one familiar concept can be translated into another. I would see it as an incremental step too far for the common law and something which would require the intervention of Parliament in order to achieve it.
62. Mr Bhose contends that this argument should be seen also in its wider context, namely, that of the effect its acceptance would have on tenancies other than secure tenancies. He also submits that it would conflict with the policy of the Housing Act 1985. The Act provides in Section 91 for a general prohibition against assignment except in certain specified situations. It is in these terms:

(1) A secure tenancy which is—

(a) a periodic tenancy, .

is not capable of being assigned except in the cases mentioned in subsection (3).

...

(3) The exceptions are—

(a) an assignment in accordance with section 92 (assignment by way of exchange);

(b) an assignment in pursuance of an order made under—

(i) section 24 of the Matrimonial Causes Act 1973 (property adjustment orders in connection with matrimonial proceedings),

(ii) section 17(1) of the Matrimonial and Family Proceedings Act 1984 (property adjustment orders after overseas divorce, &c.), ...

(iii) paragraph 1 of Schedule 1 to the Children Act 1989 (orders for financial relief against parents), or

(iv) Part 2 of Schedule 5, or paragraph 9(2) or (3) of Schedule 7, to the Civil Partnership Act 2004 (property adjustment orders in connection with civil partnership proceedings or after overseas dissolution of civil partnership, etc.)

(c) an assignment to a person who would be qualified to succeed the tenant if the tenant died immediately before the assignment.

63. It is common ground that the relevant exemption for consideration is (c). Mr Bhose submits that the plain wording of (c) contemplates the assignment of a "secure tenancy" from a tenant (or joint tenants) to a non-tenant, not an assignment or release of one joint tenant's interest in the secure tenancy to the other. He submits that this contention can withstand the analysis of Lord Nicholls of Birkenhead in Burton v LB Camden [2000] 2 AC 399, 405, where, in the context of a secure tenancy, his Lordship appears to accept the possibility in law of an assignment by two joint tenants to one of the joint tenants. Mr Arden contends that Mr Bhose's approach is too restrictive and that it is open to joint tenants to assign the tenancy to one tenant.
64. Furthermore, Mr Bhose submits that the test of whether a person is "qualified to succeed" the tenant depends on section 87. This provides that a "person is qualified to succeed the tenant under a secure tenancy if he occupies the dwelling-house as his only or principal home at the time of the tenant's death and either (a) he is the tenant's spouse or civil partner or (b) he is another member of the tenant's family and has resided with the tenant throughout the period of twelve months ending with the tenant's death ... unless, in either case, the tenant was himself a successor, as defined in section 88." As I understood his argument, it was as follows. The policy of the 1980 Act (consolidated in the 1985 Act) was to permit transmission of a secure tenancy by way of succession once: see Birmingham City Council v Walker [2007] 2 AC 262. The test of whether an assignment may be valid is whether the purported assignee would have been "qualified to succeed" the tenant on the tenant's death. Since, he argues, the tenancy would vest in the surviving tenant by operation of the principle of survivorship (which the Housing Act 1985 leaves intact), it would only be then that that sole tenant would be deemed to be a "successor" (within s.88(1)(b)), but only for the purposes of preventing a succession to the tenancy in the future. Mr Arden rejects the suggestion that the operation of the principle of survivorship prevents someone such as the Applicant from being embraced by the definition of section 87.
65. As issues of pure statutory construction, these issues are not as easy to resolve as, at first sight, they might appear. It would, in my view, be better for them to be considered in a case in which they truly arise directly. Since, for my part, I am unable to conclude that a unilateral Notice to Quit can be interpreted as a release or an assignment in the accepted sense of either term the issues do not arise in this case. If, contrary to my view, the rule in Monk has to be re-interpreted in a way that makes it compliant with Article 8, it would, in my judgment, have to be achieved by a route other than treating a Notice to Quit as a release or an assignment, attractive, in some respects, as that route might be from the point of view of simplicity. Irrespective of that consideration, all suggested "solutions" to the perceived problem will also run up against the policy concern, at a time when housing authorities have limited resources in terms of suitable accommodation for all applicants, of ensuring that they have maximum flexibility in meeting the demands placed upon them.

The subsidiary issue

66. The substance of the argument in relation to the issue foreshadowed in paragraph 4 above was raised before the judge. The basis of the argument is that Miss Devine, on behalf of the Respondent, gave advice to Mr Wilson which omitted advising him on the range of options that were open to him to avoid continuing to be liable for the rent and simply referring to the issue of a Notice to Quit as the approach he would need to adopt.
67. The way the issue was addressed before the judge was that the Notice to Quit was to be treated as invalid because Mr Wilson had been "influenced" by the Respondent to serve it. The argument was based on McCann v United Kingdom [2008] HLR 40 in which, in summary, it was held that where a local authority had requested that a Notice to Quit be served, this could give rise to the conclusion that a subsequent order for possession was unlawful.
68. The judge held, on the evidence before him, that Miss Devine had not "induced" Mr Wilson to serve the Notice to Quit and drew attention to the fact that, before the Notice to Quit was served, there was a letter from Miss Devine dated 7 February 2007 (see paragraph 21 above) advising him to take legal advice before making a decision on whether or not to end the tenancy. The judge might have added that the draft Notice to Quit she supplied to Mr Wilson contained the endorsement referred to at paragraph 24 above. Furthermore, since the essential complaint, as I understand it, is that Miss Devine should have told Mr Wilson of the possibility of assignment rather than merely referring to the service of a Notice to Quit, the judge concluded (as Mr Loveland had conceded) that this could not amount to an inducement.
69. The argument has been recast for the purposes of the proposed new ground of appeal in the following way. Whilst it is not contended that the Respondent had a common law duty of care in the giving of advice (any such duty if it existed having been owed to Mr Wilson, not the Applicant, in any event), what it is sought to be contended is that public authorities to whom people turn for advice must invariably deal with them fairly with those who turn to them for advice which means fairly not only to them, but also to those who will be directly affected by their actions.
70. It is argued that if a tenant goes to the housing authority for advice, he is entitled to look to the authority, as a responsible public body (particularly one obliged to have regard to Article 8 considerations) to advise him on how to handle his problems disinterestedly in the way that the tenant of a private landlord would not expect of his landlord. Otherwise it is said that advantage of the authority's position of credibility as a public body is taken.
71. The body of law upon which the argument is founded includes those cases raising the issue of "oppression": see, for example, Southwark L.B.C. v Sarfo (2000) 32 HLR 602 (where Roch LJ said, at 609, that "oppression may be very difficult if not impossible to define, but it is not difficult to recognise"); London Borough of Hammersmith & Fulham v. Hill (1995) 27 HLR 368; Lambeth London Borough Council v Hughes (2001) 33 HLR 33. It includes also those situations where, in general terms, a housing authority must act "fairly and reasonably" in administering its responsibilities: see, for example, Sheffield City Council v Smart (2002) HLR 34.
72. What is sought to be suggested in this context is that Miss Devine knew that Mr Wilson did not wish to make the Applicant homeless and that it would (or should) also have been within her knowledge that in some circumstances secure tenancies may be transferred or assigned on domestic breakdown. It is suggested that it is inconceivable that an officer in her position would not have been aware that "secure tenancies routinely change hands or become sole tenancies when couples split up, whether on a court order or otherwise, and/or that there are circumstances in which a secure tenancy can be assigned" and also that it was "highly unlikely that she would have been unaware of the assignment provisions of Housing Act 1985": see paragraph 98 of the Substitute Skeleton Argument for the Applicant. It is also said that if she was not generally aware of all the circumstances in which a secure tenancy can change hands, she ought to have ensured that someone advised Mr Wilson who did have greater knowledge.
73. It is the omission of advice as to the options (principally, as I understand it, the possibility of assignment) that, it is argued, renders the Respondent's conduct an abuse of its power. Whilst this cannot of itself invalidate Mr Wilson's notice to quit, it can, it is contended, make it an abuse to refuse to grant the sole tenancy subsequently sought and, thereafter, to pursue possession proceedings against the Applicant.
74. With, as it seems to me, considerable justification, Mr Bhose objects to this issue being raised in the way it is at the time it is. He submitted that the judge, who dealt with the CMCs and the two substantive hearings below (which included a hearing on 2 December 2009 when efforts were made on the Applicant's behalf to re-open the decision made in July), had already expressed reservations about the raising and amending grounds of appeal at a late stage, and the time it had all taken. Mr Bhose says that there is no reason why this point could not have been taken in the court below.
75. That said, any court would be concerned that someone such as the Applicant, with the unfortunate mental health difficulties that she has, should not be deprived of the opportunity of pursuing a point that might make a material difference to the outcome of the case even if the point emerges at a very late stage. However, my assessment of the position in this case is that there would be no realistic prospect of the Applicant persuading a court, whether upon this appeal or if the matter went back to the County Court for re-consideration on the basis further evidence, that the Respondent acted unfairly or oppressively in her case.
76. In the first place, the contentions presently being made must represent the high-point of the case that could be made on her behalf on this issue. It would probably be diluted if further evidence was given about the way housing officers generally go about their duties in this difficult and sensitive area. Whilst the judge was not invited specifically to consider the issue as presently canvassed, a judge who sits in a busy court like Willesden County Court where cases like this are frequent will recognise a case where something appears amiss. This experienced judge did not do so and referred approvingly to Miss Devine's handling of her dealings with Mr Wilson and the Applicant and concluded that she had made considerable efforts over a period of 18 months or so to assist the Applicant. Indeed, as Mr Bhose observes, the contemporaneous file notes and letters demonstrate this.
77. That, as I say, was the reaction of the judge. I too cannot identify anything amiss in the handling of the case by Miss Devine. In the first place, there would have to be a compelling argument that assignment was not merely an option, but an option that would have led to the Applicant being immune from a claim for possession. Whilst I have not found it necessary to form a concluded view on this issue, I have noted that the issue is not entirely straightforward. If I am correct in that analysis, I find it difficult to see why a housing officer should raise such an issue directly with someone such as Mr Wilson or his wife: it could set a hare running which would be best left sedentary. The best that could be done, as was done here, was to advise the obtaining of independent legal advice. Solicitors experienced in the field would be able to advise properly in the circumstances or would have access to specialist Counsel. The Housing Advice Centre or the CAB would have been able to put Mr Wilson in touch with appropriate sources of advice if it had been requested. However, on the basis of the arguments advanced before me, I am unable to see that positive advice in favour of adopting what I will call "the assignment route" would have been given in the light of authorities like Burton v LB Camden.
78. It is in the light of those considerations that I am not proposing to give permission to amend the proposed grounds of appeal.

Conclusion

79. With some misgivings, because inevitably one is concerned about someone in the Applicant's position, the two applications before me must fail. As I have said, it is not the case that she will be rendered homeless by the outcome, though, unless there is a change of heart on the part of the Respondent, she will have to re-locate.
80. In formal terms, I think (notwithstanding my conclusion on the merits) that I should grant permission to appeal, but dismiss the appeal. I refuse the application for permission to amend the grounds of appeal in relation to what I have called "the subsidiary issue".
81. I am grateful to all Counsel for their assistance.