Local authority – Possession proceedings – Respondent and his family occupying property held by respondent’s grandmother on secure tenancy under right of succession in Housing Act 1985 – Tenancy terminating after death of grandmother – Respondent having no right to remain in property under domestic law – County court refusing to grant possession order in favour of appellant local authority landlords – Whether grant of possession disproportionate contrary to Article 8 of European Convention on Human Rights – Appeal allowed
Since 2007, the respondent had lived with his grandparents in a three-bedroom house, which the grandparents held on a weekly joint tenancy from the appellant council. The respondent was later joined in the property by his newborn son and his partner. On the death of the respondent’s grandfather in 2008, the tenancy vested in his grandmother as successor under the Housing Act 1985. The grandmother died in late 2010 and, since section 37 of the 1985 Act precluded any further succession, the tenancy vested in her estate. The tenancy was terminated in October 2011 by notice to quit served by the public trustee.
The appellants brought a claim for possession against the respondent; they took the view that he and his family were overhoused and needed only a two-bedroom property. The respondent’s sole ground of defence was that the grant of possession would infringe his right to respect for his home under Article 8 of the European Convention on Human Rights. He pointed out that he had always paid the rent since his grandmother’s death and had been a good tenant. He contended that it would be disproportionate to evict him and his family from a property that was their established home, where his son had lived since birth, and a place with which the respondent had a strong local connection, in circumstances where this would render them homeless and in need of rehousing by the appellants, given that they could not afford to rent on the private market. The respondent accepted that his family was overhoused to the extent of the third bedroom, but pointed out that it was a very small boxroom.
In the county court, the district judge accepted that defence and refused to make a possession order. The appellants appealed.
Held: The appeal was allowed.
It was only in exceptional circumstances that Article 8 would provide a defence to a possession claim by a local authority and that possession would be found not to be necessary in a democratic society, contrary to Article 8(2), and therefore disproportionate in all the circumstances. The Article 8 defence would have to be pleaded and sufficiently particularised to show that it met the high threshold of being seriously arguable. The court should consider at the earliest opportunity whether the Article 8 defence as pleaded reached that threshold, assuming the pleaded facts to be correct. If it did not, the defence should be struck out or dismissed. The test was whether eviction was a proportionate means of achieving a legitimate aim. Where repossession would otherwise be lawful, the threshold for establishing an arguable case under Article 8 was a high one and would be met only in a small proportion of cases: Manchester District Council v Pinnock [2010] UKSC 54; [2011] 2 AC 104; [2010] 3 EGLR 113, Kay v Lambeth Borough Council [2006] UKHL 10; [2006] 2 AC 465; [2006] 11 EG 194 (CS), Kay v United Kingdom [2011] HLR 2; [2010] PLSCS 246, Hounslow Borough Council v Powell [2011] UKSC 8; [2011] 2 AC 186; [2011] 09 EG 164 (CS) and Corby Borough Council v Scott [2012] EWCA Civ 276; [2012] HLR 23; [2012] 21 EG 100 applied. The reasons for the high threshold related to public policy and the public benefit inherent in the functions of housing authorities, which held their housing stock for the benefit of the whole community and were best equipped to make management decisions about the way in which it should be administered.
Further, even where an Article 8 defence was established, a simple refusal of possession, without qualification, would be inappropriate in cases where the defendant had no legal right to remain in the property. Such a refusal could operate to give the defendant an unlimited and unconditional right to remain even though he had never been a tenant or licensee of the local authority. It would involve the courts assuming the authority’s function of allocating housing stock, by preferring the right of the defendant to remain, without any tenancy or contract, over the entitlement of all others to whom the authority owed statutory housing duties, without the court having any knowledge of who those people were or their circumstances and other relevant matters.
Applying the foregoing principles, the respondent’s Article 8 defence did not meet the threshold of being reasonably arguable and should have been struck out at the earliest opportunity. There was nothing exceptional about the housing needs of a couple who had limited financial needs and were the parents of a small child; such families were typical of those with a need for social housing. In the instant case, there was a further important policy consideration on which the appellants were entitled to rely, namely the lawful legislative policy under the 1985 Act that limited succession rights to secure tenancies: Wandsworth London Borough Council v Michalak [2002] EWCA Civ 271; [2003] 1 WLR 617 and R (on the application of Gangera) v Hounslow London Borough Council [2003] EWHC 794; [2003] HLR 68 applied.
Ryan Kohli (instructed by the legal department of Thurrock Borough Council) appeared for the appellants; Liam Sullivan (instructed by Cumming & Riley Solicitors, of Grays) appeared for the respondent.
Sally Dobson, barrister
