Councils seeking to terminate tenancies granted under introductory tenancy scheme – Whether introductory tenancy scheme compatible with European Convention on Human Rights – Sections 124 and 127 of Housing Act 1996 – Articles 6, 8 and 14 of European Convention on Human Rights – Appeals dismissed
These two appeals raised important questions relating to the impact of the European Convention on Human Rights (as enacted by the Human Rights Act 1998) upon the provisions of the Housing Act 1996 relating to introductory tenancies for council tenants. By section 124(1) of the 1996 Act, local authorities were granted a discretionary power to establish introductory tenancies. If such an election was made, then all new tenancies granted by an authority, which would otherwise have been secure tenancies, would be introductory tenancies. The purpose of an introductory tenancy was to enable local authorities to deal more effectively with any tendency to anti-social behaviour exhibited by a tenant in the first 12 months of a tenancy. By section 125 of the 1996 Act, so long as possession proceedings had not been commenced, the introductory tenancy would automatically become a secure tenancy on the expiry of the one-year trial period. During the period of the introductory tenancy the tenant had some, but not all, of the safeguards of a secure tenant.
In order to terminate an introductory tenancy, the authority were required to serve a notice on the tenant, setting out the reasons, and stating that the authority would be asking the court to make an order for possession. The tenant had the right to a review of that decision by the authority. The Introductory Tenants (Review) Regulations 1997 laid down the procedures that an authority had to follow when conducting a review (the review procedure). In particular: (i) the review had to be carried out by a person who was not involved in the decision to apply for an order of possession and by a person who was more senior that the original decision maker; (ii) the tenant could request an oral hearing; (iii) the tenant was not to be given less than five days’ notice of any oral hearing; and (iv) a tenant who had requested an oral hearing had the right to be accompanied and/or represented, to call persons to give evidence, to question any witness and to make representations in writing.
If, on review, the original decision was upheld, the authority could then commence proceedings for possession in the county court. By section 127(2) of the 1996 Act, the county court had to make an order for possession unless the authority had failed to comply with the requirements in section 128 of the Act. However, if the county court formed the view that there was a real chance of leave to apply for judicial review being granted by the High Court, it could adjourn the matter in order to enable that challenge to take place (the adjournment procedure): see Manchester City Council v Cochrane [1999] 1 WLR 809.
The appellants argued that the introductory tenants’ scheme under the 1996 Act was incompatible with the following Articles of the European Convention on Human Rights: (i) Article 6, which provides that everyone is entitled to a fair and public hearing by an independent and impartial tribunal; (ii) Article 8(1), which grants everyone the right to respect for his private and family life; (iii) Article 8(2), whereby that right is not to be interfered with by a public authority except in accordance with the law; and (iv) Article 14, which prohibits discrimination.
Held: The appeals were dismissed.
1. The questions under Article 8(2) that had to be considered were whether an eviction was in accordance with the law, and whether it was necessary for the protection of the rights and freedoms of others. The wording of Article 8(2) was apposite to allow consideration of the tenant’s rights, the rights of persons other than the landlord and the tenant (for example other tenants), and the rights of the landlord. Accordingly, the argument that Article 8 had no application was to be rejected.
2. What, at root, had to be considered was whether the review procedure, taken together with judicial review, provided adequate protection for a possible breach of Article 8, and thus, whether the adjournment procedure conformed with section 7 of the 1998 Act. There was no reason to think that an individual’s rights would be infringed without remedy from the courts, and therefore it could be concluded that the introductory tenancy scheme was not incompatible with Article 8.
3. The real issue raised by Article 6 was whether the combination of the review procedure and judicial review was enough to meet the requirements of the Article. In order to answer that question, it was necessary to consider the decision-making process as a whole in determining whether the requirements were met. In reality, the council were making a decision as to whether they had the right to terminate. They were not anxious to terminate unless other considerations prevailed. They were having regard to the competing interests of other tenants and of those who needed the housing that they could supply. There was no reason to hold either that the review procedure could not be operated fairly, or that the remedy of judicial review would not provide an adequate safeguard to tenants enabling them to challenge any unfairness or any infringement of their Convention rights, particularly under Article 8.
4. On the basis of the conclusion on Articles 6 and 8, no point arose in relation to Article 14, since Article 14 only operated within the ambit of another Convention right.
Nigel Pleming QC and Robert Latham (instructed by Dexter Montague & Partners, of Reading) appeared for the appellant in the first appeal; Timothy Straker QC and Sarah-Jane Davies (instructed by the solicitor to Bracknell Forest Borough Council) appeared for the respondents in the first appeal; David Watkinson and Beatrice Prevatt (instructed by Shelter) appeared for the appellant in the second appeal; Andrew Arden QC and Christopher Baker (instructed by the solicitor to Reigate & Banstead Borough Council) appeared for the respondents in the second appeal; Philip Sales and Daniel Stilitz (instructed by the Treasury Solicitor) appeared for the Secretary of State for Transport, Local Government and the Regions, as interested party in both appeals.
Thomas Elliott, barrister
