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
		13/07/2010

Mrs Justice Rafferty :

1. This is an application for permission to appeal the 9^th October 2009 Order of Miss Recorder Wright QC as she then was that the Appellant give up possession of 27 Dewberry Street, London, E14 0RW ("the property") to the Respondent.
2. The Appellant, who enjoys ill-health, and his estranged wife Jean become joint secure tenants of the London Borough of Tower Hamlets ("the council") in the property, itself transferred to the Respondent, which become the registered proprietor, after which the Appellant and Mrs Howe became assured tenants. In May 2006, after husband and wife separated Mrs Howe was accepted by the council as homeless and on 31^st May 2006 she signed a "termination of tenancy" form paving the way for an offer of another property.
3. The Council and the Respondent are partners to and in a Common Housing Register and common allocations policy and on the Appellant's behalf the Respondent successfully applied to the council's Housing Management Panel for rehousing. He received four offers of accommodation, all of which he found unsuitable, at least in part as too small, including the fourth, Zetland Street. Central to the Appellant's case was the Respondent's refusal of a moving allowance because he was not a legal tenant, although it offered to waive rent arrears on the property.
4. The Respondent sought to exercise its mandatory right to possession in reliance on Hammersmith LBC v Monk [1992] 1 AC 478 ("Monk"). The rule in Monk provides that by giving a valid notice to quit any one joint tenant may terminate the tenancy, thereby destroying any other joint tenant's legal interest in it. The House of Lords in Harrow LBE v Qazi [2004] 1 AC 983 accepted that the rule was compliant with Article 8.
5. The Appellant argued grounds based on the Human Rights Act 1998 and on public law. At the court below he also claimed that he had been granted a fresh tenancy after Mrs Howe had left but does not pursue it here. The Recorder found no seriously arguable case to remit to the High Court on the Human Rights Act 1998 and public law grounds.

Grounds of Appeal

6. In grounds of appeal the complaints are:

a) The Recorder should have remitted the matter to the High Court for a declaration that the rule in Monk is incompatible with the Appellant's right to respect for his home under Article 8, Schedule 1, Human Rights Act 1998, in other words in reliance on Gateway (a) as required by the House of Lords in Doherty v Birmingham City Council [2009] 1 AC 367.

b) The Recorder should have remitted the matter to the High Court for a declaration that the notice to quite was unlawful because:

(i) The Respondent by enabling Mrs Howe to execute the notice to quit failed to consider the interest in his home of the Appellant when other options were available.

c) The Recorder erred in finding that the offer of Zetland Street was not unsuitable as a consequence of the Appellant's inability to fund his own removal expenses.

d) The Recorder erred in finding that the Appellant was not entitled to his removal expenses under the cash incentive scheme.

The compatibility issue

Gateway (a)

7. The issue is whether the rule in Monk be per se incompatible with Article 8, Schedule 1, Human Rights Act 1998 as, without the proportionality and reasonableness being determined by an independent tribunal, permitting eviction. Were it incompatible its application would amount to the court acting unlawfully within the meaning of s.6 of the Human Rights Act 1998.

Article 8 reads as follows:

"Right to respect for private and family life.

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."

In Kay v LB Lambeth [2006] 2 AC 465 ("Kay") at 203 Lord Brown said:

"… where under domestic law the owner's right to possession is plainly made out…….. the judge in my opinion has no option but to assume that our domestic law properly strikes the necessary balances between competing interests… 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 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…; 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 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 observes at para 36, it is not unrealistic to regard the general law as striking the required balance."

The challenge derives from the judgment of Lord Hope at paragraph 110 in Kay:

"… (a) if a seriously arguable point is raised that the law which enables the court to make the possession order is incompatible with art 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 s 3, in a way that is compatible with art 8, or (ii) by adjourning the proceedings to enable the compatibility issue to be dealt with in the High Court…"

8. Lord Bingham said:

"(4) Deciding whether the defendant has a seriously arguable case [on gateway (a) or (b)] will not call for a full-blown trial. This question should be decided summarily, on the basis of an affidavit or of the defendant's defence, suitably particularised, or in whatever other summary way the court considers appropriate. The procedural aim of the court must be to decide this question as expeditiously as is consistent with the defendant having a fair opportunity to present his case on this question. (5) If the court considers the defence sought to be raised on one or both of these grounds is not seriously arguable the court should proceed to make a possession order. (6) Where a seriously arguable issue on one of these grounds is raised, the court should itself decide this issue, subject to this: where an issue arises on the application of section 3 (of the Human Rights Act) the judge should consider whether it may be appropriate to refer the proceedings to the High Court."

9. The rule in Monk by some years pre-dated the incorporation of the ECHR into domestic law. It is worth pausing for a moment to review the striking similarity of the facts in this case with those in Qazi. In Qazi a joint secure tenancy between husband and departing wife who gave the housing authority notice to quit ended the joint tenancy and the husband's right to occupy the premises. The authority refused his application for a sole tenancy of family-sized accommodation and requested him to vacate the premises. Instead he remarried, continued to live there with his new wife and family and resisted an order for possession relying on Article 8.
10. Lord Hope said this:

"……….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…….. The only question is whether it is a violation of the respondent's article 8 rights….

….

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…"

11. Lord Millett said:

"103…..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."

12. Notwithstanding the decisions in Qazi, Ka, Doherty, and Dixon [each of which was considered by the Recorder] the Appellant submits that developing ECHR jurisprudence indicates that it is seriously arguable that the rule in Monk is incompatible with Article 8.
13. In Wandsworth LBC v Dixon [2009] EWHC 27 HH Judge Bidder QC sitting as a Deputy High Court Judge considering Qazi said:

"[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)."

14. I cannot improve upon that analysis. Judge Bidder QC took the correct and inevitable view that unless or until Qazi is said by the Supreme Court no longer to represent the law, the argument as to incompatibility is unsustainable. In dialogue during this application I invited reference to any authority or learned opinion supporting the contention that Qazi is not good law and none was cited.
15. The decisions of the ECHR in McCann v UK [2008] HLR 40 and Cosi v Croatia (ECHR Application 28261/06), also considered by the Recorder, as well as a subsequent decision in Paulic v Croatia (Application no. 3572/06) are also relied upon by the Appellant.
16. In Paulic, the Court emphasised that mandatory eviction grounds do not contain the procedural protections required by Article 8:

"42. The Court notes that when it comes to the decisions of the domestic authorities in the present case, their findings were restricted to the conclusion that under applicable national laws the applicant had no legal entitlement to occupy the flat. The national courts thus confined themselves to finding that occupation by the applicant was without legal basis, but made no further analysis as to the proportionality of the measure to be applied against the applicant, namely his eviction from a State-owned flat. However, the guarantees of the Convention require that the interference with an applicant's right to respect for his home be not only based on the law but also be proportionate under paragraph 2 of Article 8 to the legitimate aim pursued, regard being had to the particular circumstances of the case. Furthermore, no legal provision of domestic law should be interpreted and applied in a manner incompatible with Croatia's obligations under the Convention...

43. In this connection the Court reiterates that any person at risk of an interference with his right to home should in principle be able to have the proportionality and reasonableness of the measure determined by an independent tribunal in the light of the relevant principles under Article 8 of the Convention, notwithstanding that, under domestic law, he or she has no right to occupy a flat (see McCann v the United Kingdom, no. 19009/04 §50, 13 May 2008). …….If an applicant raises an Article 8 defence to prevent eviction, it is for him to do so and for a court to rebut the claim. As previously held, the Court does not accept that the grant of the right to an occupier to raise an issue under Article 8 would have serious consequences for the functioning of the domestic systems or for the domestic law of landlord and tenant (see, McCann v the United Kingdom, ….., §28 AND 54)."

17. However, there has been consideration of the tension between domestic and European jurisprudence. In Husband v Solihull MBC [2009] WLR 5641106 Bean J refusing permission to appeal said:

"….the submissions based on Monk have been determined in other cases, including….Doherty…and Dixon……In my judgment it is not, in the state of English law now, arguable that the unqualified right to possession by a landlord is incompatible with Article 8…….."

18. In R (on the application of Coombes)-v-(1) Secretary of State for Communities and Local Government (2) Waltham Forest LBC [2010] EWHC 666(Admin) Cranston J considered Paulic as well as McCann, Cosic and other post-McCann European judgments but nevertheless held:

"Nor is it open to me to find that the manner in which the County Court grants possession orders under these legislative provisions is incompatible with Article 8 of the Convention. The Strasbourg jurisprudence – McCann and its progeny – establishes that for an eviction to be proportionate an independent tribunal itself must be able to consider the personal circumstances of the occupier. Gateway (b) in Kay and Doherty enables personal circumstances to enter but only through a review of the decision-making of the council property owner. There is an obvious conflict between the Strasbourg jurisprudence and our own.

But the House of Lords in Kay and Doherty has held that the availability of gateways (a) and (b) to challenge possession proceedings is sufficient to render them compatible with Article 8. This court is bound to follow decisions higher in the domestic curial hierarchy irrespective of the conflicting Strasbourg authority (see Lord Bingham in Kay paragraphs 40 to 45, with whom all other Law Lords agreed, paragraphs 50, 62, 121, 177, 178, 213). There is nothing in the wording of Section 3 and the other legislation which makes it not "possible", to use the statutory language, for the County Court to consider a defence based on Article 8. It is the binding force of the House of Lords' decisions which produce that result. That is not a basis for making a declaration of incompatibility."

Additionally the McCann line of authorities was recognised as requiring close attention by Lord Hope in Doherty:

"20. Secondly, I am not convinced that the Strasbourg court – which did not hear oral argument in McCann – has fully appreciated the very real problems that are likely to be caused if we were to depart from the majority view in Kay in favour of that of the minority. The proposition that it would only be in very exceptional cases that an applicant would succeed in raising an arguable case which the Strasbourg court adopted in para 54 of its judgment appears to set a high standard, one that will be hard to achieve. But is suffers from a fundamental defect which renders it almost useless in the domestic context. It lacks any firm objective criterion by which a judgment can be made as to which cases will achieve this standard and which will not. Unless parameters or guidelines are set down, the judgment in each case will be a subjective one. Every solicitor who is asked to advise an occupier will have to consider whether it is arguable that the decision to seek his eviction was not proportionate. If he decides to raise this argument the court will have to examine the issue. The whole point of the reasoning of the majority was to reduce the risks to the operation of the domestic system by laying down objective standards on which the courts can rely. I do not think that the decision in McCann has answered this problem. Until the Strasbourg court has developed principles on which we can rely on for general application the only safe course is to take the decision in each case as it arises."

19. Mr Gallivan for the Appellant, although he accepts that the Recorder was bound by the House of Lords judgments, suggests that this issue is ripe for reconsideration by the higher Courts because of the coherent, consistent line of ECHR opinions, which demonstrate that there is a seriously arguable case that the rule in Monk is incompatible with Article 8. He relies upon R v Horncastle [2009] UKSC 14 where the Supreme Court was unanimous that it was open not to follow a decision of the Strasbourg Court where the latter insufficiently appreciates or accommodates particular aspects of the UK domestic process, thus enabling a "valuable dialogue" between those courts.
20. I am told that the Supreme Court has given permission to appeal in Manchester City Council v Pinnock, which raises gateway (a) and (b) issues, and that the ECHR in Kay v UK has been invited to consider the question: "Did the applicants have the opportunity to have the proportionality of their evictions determined by an independent tribunal in the light of the relevant principles under Article 8?"
21. Albeit I have been careful to set out in a little detail both the ways in which oral argument was before me developed and the approach of the courts within a good many of the authorities cited, nevertheless this aspect of the case, that is the incompatibility argument, could have been resolved very briefly, thus: whilst Qazi remains good law this application could not succeed.

The doctrine of precedent

22. The House of Lords in Kay was clear that adherence to the doctrine of precedent is the only way to ensure certainty. Lord Bingham as paragraph 43 said:

"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 the Court of Appeal did here."

The Recorder's ruling

23. The Recorder having with care and precision reviewed those authorities to which she was taken found no seriously arguable case to remit to the High Court and refused permission to appeal on this ground because:

"The House of Lords has already ruled on the issue of compatibility in the cases of LB Lambeth v Kay [2006] 2 AC 465 and Birmingham CC v Doherty [2009] 1 AC 367. I made a clear finding that there was no seriously arguable case for the matter to be remitted to the High Court."

24. The Recorder's conclusions and her route to them are clear and in my judgment sound as her careful analysis of the law makes clear. The issue as I have rehearsed is stark – Qazi defeats an incompatibility challenge. Thus for two reasons I fond on this aspect the Recorder's conclusions and her route to them unimpugnable. First, Qazi remains good law. Second, as to the desirability of consistency the words of Lord Bingham in Kay are clear and unambiguous:

"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."

Gateway (b)

25. The Grounds of Appeal as to Gateway (b) are that in rejecting the Appellant's defence (that the Respondent failed to follow its own policy, upon which Grounds (b)-(d) bite) the Recorder found that offers of alternative accommodation after 3^rd July 2006 were made without any legal responsibility or obligation on the part of the Respondent.
26. The Respondent does not and did not concede that it is for Human Rights Act and public law purposes a public authority since it is neither subject to nor bound by Parts VI and Vii Housing Act 1996. The Respondent submits that it was not in law required to make any off of accommodation and therefore the suitability of any alternative accommodation is a red herring. The flaw in the Appellant's reasoning it argues can be tested by a reduction ad absurdum – any offer would be unsuitable unless the Respondent paid removal expenses, a payment that it was not in law required to make, and it follows that the Recorder was entitled to find that the Appellant had not acted reasonably in rejecting Zetland Street as unsuitable because he could not find his own removal.
27. The Appellant's case was considered by a Housing Management Panel and he contends that by virtue of "scoring" either an extenuating social need or an emergency priority the offered accommodation had to be suitable and reasonable. Furthermore he argues that having notified the Respondent that the accommodation was not suitable and reasonable he was entitled to a review of the offer by a more senior officer.
28. The Appellant refused Zetland Street claiming that as a consequence of his ill-health he was unable to afford to move in without financial assistance, to which he claimed entitlement under the Respondent's "Larger to Smaller Cash Incentive Scheme". He submits that buy virtue of its decision to waive arrears the Respondent acknowledged his need but misled itself by a literal construction of the terms of its Scheme, finding him no longer a tenant and thus not eligible. It is accepted that the Cash Incentive Policy applied only to tenants and if the Appellant's tenancy had come to an end he was not entitled to removal expenses and as such is dependant upon the success of one or both of the first two grounds.
29. Finally on this topic the Appellant contends that in breach of its lettings policy the Respondent failed to offer a review of its decision that the accommodation offered was both suitable and reasonable. Hence it failed to follow its own policy and/or failed to take into account a relevant consideration and/or reached a decision which was Wednesbury unreasonable, a classic gateway (b) defence.

Suitability

30. The Appellant argued that suitability of the offer of alternative accommodation depended on the refusal of the Respondent to assist the Appellant with his removal expenses. It was submitted before the Recorder that the Respondent's obligations derived from the route it chose to re-house the Appellant (Part VI, Housing Act 1996), which imposed certain legal responsibilities on local authorities and, by extension in this case (because the Respondent acted in concert with the local authority through a common allocation policy), the Respondent. It was accepted that the Respondent had made a number of offers of alternative accommodation but the Appellant argues that the court's focus should be on his reasons for refusing the final offer (Zetland Street), viz. that he could not afford to move. I note in passing that in cross-examination he told the Recorder that another reason for his rejection was that the property was too small.
31. The issue is whether, absent assistance financial or in kind from the Respondent, the offer was neither suitable nor reasonable because the Appellant could not have accepted it. More generically, the point of law raised by this ground concerns the meaning of a "suitable and reasonable offer" of accommodation.

The Recorder's findings

32. In her reserved judgment the Recorder said:

"34. The Claimant is not a local authority, and had no legal obligation or responsibility to provide accommodation for the defendant after the termination of the tenancy at 27 Dewberry Street in 2006. However, I accept that the claimant did make offers of alternative accommodation to the defendant in an attempt to assist him, given his circumstances, and as a good social landlord. I accept the evidence…..that the claimant did this without assuming responsibility for Steven Howe, and indeed the offers of accommodation were made, albeit the defendant was told if he refused the offers of accommodation, he would not necessarily receive any further assistance. Although I find the claimant had no responsibility or obligation towards Steven Howe, I find somewhat unusually it was prepared to assist the defendant to a significant extent to obtain accommodation, provide a new tenancy for him, and even to waive rent arrears which had accrued which would have meant Mr Howe could not have taken up any alternative offer of accommodation without clearing rent arrears first. I have paid particular attention to a letter dated 20 August 2008 relating to the fourth offer of accommodation…[3 Zetland Street]..and the advice given to the defendant that if he felt the property was not suitable or reasonable he needed to give reasons why. Subsequently a letter dated 29 August 2008 confirms that Steven Howe did indeed accept the property at 3 Zetland Street on 28 August 2008 and a tenancy date of 8 September 2008 was agreed. When Steven Howe subsequently enquired about the cash incentive scheme (which provided payment of removal expenses to tenants downsizing and therefore freeing up family accommodation under a local authority scheme) he was told he would not qualify, and in those circumstances he did not agree with the decision and rejected the offer of accommodation. At that stage the claimant was prepared to waive rent arrears (which were approximately £500)."

33. The Recorder rejected the argument that the Respondent was acting unreasonably or disproportionately in refusing to assist the Appellant with his removal expenses and found that it had taken account of the Appellant's medical condition in the type of property it offered and by waiving his rent arrears. She rejected the contention that the Appellant in claiming Zetland St unsuitable because he could not afford the relevant moving expenses was acting reasonably. She found that he could have had no expectation of entitlement to removal expenses under the cash incentive scheme, reminding herself that the issue of financial assistance was not raised by the Appellant in relation to offers prior to Zetland Street. In any event she found that the incentive scheme could not apply to him. He was not a tenant "downsizing", its then qualifying condition.

Conclusion

34. I can find nothing in her judgment to persuade me that the Recorder fell into error in her approach to or decisions on any aspect of this case. I have dealt earlier in this judgment with her conclusions on incompatibility and precedent, unimpugnable and on current law inevitable. As to the public law arguments her findings are also for the reasons she gave and which I adopt not amenable to challenge. She was certain to find that the Respondent's acting as generously as it did towards the Appellant could never translate into a public law challenge for the reasons she gave and with which I also agree. It would be a remarkable result were the Appellant, not a tenant, in reliance upon his straitened finances entitled unilaterally to select the property he would be prepared to accept.
35. I have no hesitation in rejecting all these grounds of appeal and this application is refused.