QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| HERTFORDSHIRE COUNTY COUNCIL
|- and -
|BRYN COLIN DAVIES
Toby Vanhegan and Riccardo Calzavara (instructed by Arkrights Solicitors) for the Defendant
Hearing dates: 16.05.2017 – 17.05.2017
Crown Copyright ©
Mrs Justice Elisabeth Laing DBE :
The law of landlord and tenant
"Where the occupation is necessary for the performance of services, and the occupier is required to reside in the house in order to perform those services, the occupation being strictly ancillary to the performance of the duties which the occupier has to perform, the occupation is that of a servant' (per Mellor J. in Smith v. Seghill Overseers (1875) LR 10 QB 422 , 428)."
The Protection from Eviction Act 1977 ('the 1977 Act')
"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 wellbeing 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."
"Prohibition of Discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
i) Do the facts fall within the ambit of one or more of the Convention rights?
ii) Was there a difference in treatment in respect of that right between the complainant and others put forward for comparison?
iii) Were those others in an analogous situation?
iv) Was the difference in treatment objectively justifiable? Ie, did it have a legitimate aim and bear a reasonable relationship of proportionality to that aim?
The fifth question is whether the difference in treatment is based on one or more of the grounds proscribed whether expressly - or by inference - in article 14. The parties disagreed whether it should be asked third, or last. Baroness Hale said that the five questions were a useful analytical tool but they overlapped, especially the last three. If the situations are not truly analogous, it may be easier to decide that the treatment was not on a proscribed ground. The reasons why the situations are analogous but the treatment different will be relevant to objective justification. A rigidly formulaic approach should be avoided.
"The proportionality of legislation is to be judged on that basis. The courts are to have due regard to the legislation as an expression of the will of Parliament. The proportionality of a statutory measure is not to be judged by the quality of the reasons advanced in support of it in the course of parliamentary debate, or by the subjective state of mind of individual ministers or other members. Different members may well have different reasons, not expressed in debates, for approving particular statutory provisions. They may have different perceptions of the desirability or likely effect of the legislation. Ministerial statements, especially if made ex tempore in response to questions, may sometimes lack clarity or be misdirected. Lack of cogent justification in the course of parliamentary debate is not a matter which "counts against" the legislation on issues of proportionality. The court is called upon to evaluate the proportionality of the legislation, not the adequacy of the minister's exploration of the policy options or of his explanations to Parliament. The latter would contravene article 9 of the Bill of Rights. The court would then be presuming to evaluate the sufficiency of the legislative process leading up to the enactment of the statute. I agree with Laws LJ's observations on this in International Transport Roth GmbH v Secretary of State for the Home Department  QB 728, 775, paras 113-114."
The Equality Act 2010 ('the 2010 Act')
i) A applies, or would apply it, to other people who are not disabled,
ii) it puts, or would put, people who share B's protected characteristic (disability) at a particular disadvantage when compared with people who are not disabled,
iii) it puts, or would put, B at that disadvantage, and
iv) A cannot show that it is a proportionate means of achieving a legitimate aim.
"The structured approach to proportionality asks whether there is any lesser measure which might achieve the landlord's aims. It also requires a balance to be struck between the seriousness of the impact on the tenant and the importance of the landlord's aims. People with disabilities are "entitled to have due allowance made for the consequences of their disability": Lewisham London Borough Council v Malcolm  AC 1399, para 61. It certainly cannot be taken for granted that the first of the twin aims will almost invariably trump that right. Even where social housing is involved, the general considerations involved in the second of the twin aims may on occasions have to give way to the equality rights of the occupier and in particular to the equality rights of a particular disabled person. The impact of being required to move from this particular place on this particular disabled person may be such that it is not outweighed by the benefits to the local authority or social landlord of being able to regain possession."
Section 149 of the 2010 Act
The Children Act 2004 ('the 2004 Act')
i) what was the legal nature of the Defendant's occupation of the Bungalow immediately before he was dismissed?
ii) is the Claimant entitled to rely on the Exception?
iii) leaving aside the HRA, what public law duties, if any, affected the Claimant in its exercise of its right to claim possession of the Bungalow, were they breached, and, if so, with what consequences?
iv) is this analysis affected bya) the Defendant's discrimination claim orb) the HRA?
(1) What was the legal nature of the Defendant's occupation of the Bungalow immediately before he was dismissed and after that?
(2) Is the Claimant entitled to rely on paragraph 2 of Schedule 1?
(3) Leaving aside the HRA, what public law duties, if any, affected the Claimant's right to seek possession, were they breached, and, if so, with what consequences?