Landlord and tenant – Human Rights – Possession – Housing Act 1985 – Appellant occupying same property all his life – Property held by two successive members of appellant’s family on secure tenancy – Respondent local authority landlords seeking possession after death of secure tenant by succession – Whether refusal to grant “second succession” to appellant breaching Article 8 of European Convention on Human Rights – Appeal dismissed
The appellant occupied a three-bedroom property in London, HA4, in which he had lived all his life. His grandmother had been a secure tenant of the property until her death in March 2009, whereupon her husband had succeeded to the secure tenancy pursuant to section 87 of the Housing Act 1985. The husband later died also. Because there had already been one succession, the appellant was unable to succeed to the tenancy under the statutory provisions as he would otherwise have done as a member of the deceased’s family who had resided with him throughout the period of 12 months ending with his death.
In June 2012, the respondents gave the appellant notice to quit the property. At that time, the respondents’ allocation scheme for social housing provided that a “second succession” might be allowed for a vulnerable individual who had lived at the property for more than 10 years and who was more than 65 years old, or more than 50 years old in the case of a person with learning difficulties. The appellant did not meet the age criterion in that policy.
The respondents subsequently brought proceedings for possession of the property. By the time of the possession hearing, the appellant was 34 years old. He was then occupying the property with his brother, who had moved in to give him support after he developed mental health problems, including anxiety, panic attacks and depression, following his grandmother’s death. The appellant raised a defence to the possession claim based on Article 8 of the European Convention on Human Rights, arguing that eviction would be a disproportionate interference with his right to respect for his home, taking into account his mental health difficulties and the fact that he had lived in the property all his life.
The judge dealt with the Article 8 point as a preliminary issue, concluded that the appellant had no seriously arguable defence on that ground and granted a possession order accordingly.
The appellant appealed. He raised a new public law ground that the respondents had unlawfully fettered their discretion as to whether to grant a secure tenancy to him by adopting a succession policy which contained no residual discretion or, if it did, by ignoring it.
Held: The appeal was dismissed.
(1) In cases where possession was sought against a surviving member of the family of a deceased secure tenant by succession, and where that family member was occupying as a trespasser, following service of a notice to quit, there would ordinarily be no breach of Article 8 because the local authority would usually be seeking eviction as a proportionate means of achieving a legitimate aim. The authority would be vindicating their unencumbered property rights, enabling them to comply with their duties in relation to the distribution and management of scarce social housing stock. A further important policy consideration was the decision of parliament, under the 1985 Act, to limit the persons and the occasions for automatic succession to a secure tenancy: Thurrock Borough Council v West [2012] EWCA Civ 1435; [2013] HLR 5 applied.
(2) In the instant case, only two factors were proffered as lying in the proportionality balance in the appellant’s favour, namely his mental condition and his lifetime of residence at the property. The judge had properly concluded that, in the aggregate, those factors did not give rise to a seriously arguable Article 8 defence.
A person seeking to rely on Article 8 would need to demonstrate a minimum length of residence, in order to show that the property in question was their home and that Article 8 was engaged. However, the period of residence, however long, would not on its own be sufficient to found an Article 8 proportionality defence in the second succession context, because, if it were otherwise, it would be difficult to see how the statutory prohibition of second succession in English law could be compatible with the Convention. The length of residence might form part of an overall proportionality assessment, in the sense that all the circumstances of the case might need to be reviewed and their effect considered in the aggregate. Nonetheless, the length of residence was unlikely to be a weighty factor in striking the necessary proportionality balance, precisely because parliament had lawfully excluded second succession to members of a deceased secure tenant’s family. A long period of residence might therefore form part of the circumstances, viewed as a whole, but was, in itself, of little consequence.
The appellant’s medical condition was not, on its own, a factor of anything like sufficient weight to render disproportionate the respondent’s decision to evict, as a means of vindicating their property rights and enabling them to perform their duties as a public housing authority. The appellant’s lifetime residence at the property was neither exceptional, nor of significant weight, viewed on its own. No significant added weight in the proportionality balance was achieved by aggregating the appellant’s medical condition with his long residence. The evidence did not show, for example, that the appellant’s mental condition was likely to be gravely exacerbated if he were to move from the home in which he had been born to some other home, even if living in familiar surroundings might be supposed to have provided some comfort for him. Nor was the location of the particular property in any sense relevant in terms of making it easier for him to obtain requisite treatment. This was, on its face, a case in which the balance remained so firmly tilted in favour of the weighty considerations which justified the respondent seeking eviction, against the much less weighty and unexceptional circumstances put forward by the appellant, that there was no real prospect that a trial of the claim could lead to a successful Article 8 defence.
(3) The provision in the respondents’ allocation scheme for persons without succession rights to be given exceptional consideration for social housing if they met certain specified criteria was not a self-contained discretionary policy about succession but was a small part of a much larger allocation scheme. It was arguable that a sufficient residual discretion was contained in other provisions of the scheme. Even if that did not suffice, either because the residual discretion was too narrow for the purpose or because the respondents had not, in any event, consciously considered whether to apply a residual exceptional discretion to the appellant’s case, the appellant’s public law ground nonetheless failed. It was open to a public authority, when the lawfulness of their decision-making process was challenged in that way, to seek to show that, even if their policies and process had complied with the relevant dictates of public law, it would inevitably have led to the same outcome for the complainant. In the instant case, there was no real prospect that the respondents would have allowed a second succession in the appellant’s case. The appellant came nowhere near qualifying for the exceptional allocation of a three-bedroom house, at a time when there were many households waiting for three-bedroom properties, of which some were homeless, some had disabilities and others were overcrowded. To have preferred the appellant, as a single man, over those competing applicants would have undermined one of the fundamental principles of the respondents’ allocation scheme, namely the prioritising of those in greatest need.
Toby Vanhegan and Riccardo Calzavara (instructed by ARKrights Solicitors, of Watford) appeared for the appellant; Ranjit Bhose QC and Emma Dring (instructed by the legal department of Hillingdon London Borough Council) appeared for the respondents.
Sally Dobson, barrister
Click here to read a transcript of Hillingdon London Borough Council v Holley.