Demoted tenancy – Possession proceedings – Section 143D of Housing Act 1996 – Appellant’s secure tenancy demoted on grounds of anti-social behaviour by family members – Possession notice served by respondent local authority landlords – Review panel upholding notice – County court conducting judicial review of panel’s decision and granting possession order – Extent of county court’s review jurisdiction – Article 8 of European Convention on Human Rights – Whether section 143D(2) compatible with Article 8 – Appeal dismissed
Since 1978, the appellant had lived with his partner, with whom he had five children, in a property let to him by the respondent local authority. His secure tenancy was demoted in 2005 on an application by the respondents, under section 82A of the Housing Act 1985, as amended by the Anti-Social Behaviour Act 2003, on the ground of anti-social behaviour by the appellant’s partner and children. In 2008, shortly before the demotion order would have lapsed, the respondents served a notice, under section 143E of the Housing Act 1996, of their intention to seek possession on the ground of further alleged anti-social behaviour by two of the appellant’s sons. The appellant exercised his right to a review but the review panel upheld the notice.
The respondents applied to the court for a possession order under section 143D of the 1996 Act. In those proceedings, the appellant sought to challenge the factual basis on which the respondents had sought possession and on which the panel had upheld that decision. He further contended that a possession order would breach his rights under Article 8 of the European Convention on Human Rights. The county court judge considered that his role was limited to conducting an ordinary judicial review of the respondents’ decision and did not extend to resolving factual disputes or arguments based on Article 8. He found that the respondents’ decision was rational and made an order for possession.
The appellant’s appeal against that decision was dismissed by the High Court and the Court of Appeal. The latter took a more limited view of the county court’s role than had the county court judge. It held that, on the express wording of section 143D(2), the county court could not review the substance or rationality of the decision to seek possession but was obliged, on the express wording of section 143D(2) of the 1996 Act, to grant the possession order sought so long as the correct procedure under sections 143E and 143F had been followed: see [2009] EWCA Civ 852; [2009] 32 EG 68 (CS). The appellant appealed. The issues on the appeal related to the compatibility of the demoted tenancy regime in the 1985, 1996 and 2003 Acts with Article 8 of the Convention.
Held: The appeal was dismissed.
(1) The jurisprudence of the European Court of Human Rights (ECtHR) established that any person at risk of being dispossessed of his home at the suit of a local authority should, in principle, have the right to raise the proportionality of the measure and have that matter determined by an independent tribunal in the light of Article 8, even if his right of occupation under domestic law had come to an end, and that a judicial procedure that was limited to addressing the proportionality of the measure through the medium of traditional judicial review was inadequate because it was not appropriate for resolving sensitive factual issues: McCann v United Kingdom [2008] 28 EG 114, Cosic v Croatia (28261/06), Zehentner v Austria [2009] ECHR 20082/02, Paullic v Croatia (3572/06), Kay v United Kingdom (37341/06) and Connors v United Kingdom [2005] 40 EHRR 189 applied.
Although the Supreme Court was not obliged to follow every decision of the ECtHR, it would be wrong not to follow its consistent line of decisions, the effect of which was not inconsistent with a substantive or procedural aspect of domestic law, and the reasoning in which it did not overlook or misunderstand some argument or point of principle. Accordingly, in the light of the ECtHR jurisprudence, the minority view in the relevant earlier House of Lords decisions should be applied, such that, where a court was asked to make an order for possession of a person’s home at the suit of a local authority, the court had to have the power to assess the proportionality of making the order and, in making that assessment, to resolve any relevant dispute of fact: Harrow London Borough Council v Qazi [2003] UKHL 43; [2003] 3 EGLR 109, Kay v Lambeth London Borough Council [2006] UKHL 10; [2006] 2 AC 465 and Doherty v Birmingham City Counci [2008] UKHL 57; [2009] 1 AC 367 considered.
(2) Section 143D(2) of the 1996 Act, if construed in the traditional way, would limit the court to satisfying itself that the procedural requirements of sections 143E and 143F had been complied with, and preclude it from either investigating the facts relied on to justify the decision to seek possession or refusing an order for possession if it considered such an order to be disproportionate. However, it was possible, under section 3(1) of the Human Rights Act 1998, to read section 143D(2) as not excluding that power so as to render it Convention-compliant. A local authority when deciding whether to bring possession proceedings against a demoted tenant under section 143E had a duty in domestic law to act rationally and to investigate the facts fairly, as well as a duty under Article 8 to consider proportionality. Lawfulness was an inherent part of the procedure under sections 143E and 143F. If that procedure was not lawfully complied with, either because its express requirements were not observed or the rules of natural justice were infringed, a tenant should be able to raise that as a defence to a possession claim under section 143D(2) and the court should be able consider whether the procedure had been lawfully followed, having regard to the occupier’s Article 8 rights. Since ECtHR jurisprudence required the court considering such a challenge to have the power to make its own assessment of any relevant disputed facts, the traditional review powers of the court should be expanded so as to permit it to carry out that exercise. Section 143D(2) should therefore be read as allowing the court to exercise the powers that were necessary to give effect to any Article 8 defence that the defendant raised in the possession proceedings, including, the power to reconsider the facts by hearing evidence and forming its own view. On that approach, a tenant could raise proportionality issues in the possession proceedings, even if they were in the county court, and the county court could exercise the powers necessary for that purpose: Wandsworth London Borough Council v Winder (No 1) [1985] AC 461 and Doherty applied; Manchester City Council v Cochrane [1999] 1 WLR 809 disapproved in part. Since a county court judge who was invited to make a possession order against a demoted tenant under section 143D(2) could consider whether it was proportionate to make the order and could determine relevant issues of fact, the demoted tenancy regime in the 1996 Act was compatible with Article 8.
(3) Although earlier cases had posited that it was appropriate for the court to consider a proportionality argument only in highly exceptional cases, it was unsafe and unhelpful to invoke exceptionality as a guide. The question was always whether eviction was a proportionate means of achieving a legitimate aim. However, in almost ally cases in which a residential occupier had no contractual or statutory protection and the local authority were entitled to possession under domestic law, there would be a very strong case for the proportionality of a possession order. If an Article 8 point was raised by a residential occupier in proceedings, that point should first be considered summarily and if, as would often be the case, the court were satisfied that the point would not succeed, even if the facts relied on were made out, it should be dismissed.
(4) In the instant case, it had been proportionate to make an order for possession such that it was unnecessary to remit the case for further determination.
Richard Drabble QC and James Stark (instructed by Platt Halpern, of Manchester) appeared for the appellant; Andrew Arden QC and Jonathan Manning (instructed by the legal department of Manchester City Council) appeared for the respondents; Daniel Stilitz QC and Ben Hooper (instructed by the Treasury Solicitor) appeared for the secretary of state for communities and local government, as intervener; Jan Luba QC (instructed by the Equality and Human Rights Commission) appeared for the Equality and Human Rights Commission, as intervener.
Sally Dobson, barrister
