Local authority – Housing – Human rights – Death of secure tenant – Claimant son remaining in property – Defendant local authority claiming possession – Claimant seeking declaration of incompatibility with human rights law – Whether national provisions compatible with right to respect for home and right to fair hearing – Application dismissed
The claimant’s father had, since 1954, held a secure tenancy of a flat, of which the defendant council were the landlord. Following the father’s death in 1999, the claimant’s mother succeeded to the tenancy, pursuant to section 88 of the Housing Act 1985, and the claimant continued to live in the property. The claimant’s mother died in 2005. Since no one was entitled to succeed to the tenancy within the meaning of section 87 of the 1985 Act, a notice to quit was served on the claimant.
The claimant failed to comply with the notice and the defendants commenced possession proceedings in the county court on the basis that he was not entitled to occupy the property. The claimant counter-claimed seeking, inter alia, a declaration that section 3 of the Protection from Eviction Act 1977 was incompatible with his rights under the European Convention on Human Rights. The county court proceedings were stayed and the case was transferred to the Administrative Court. The secretary of state for communities and local government was joined as an interested party.
The claimant argued that section 3 of the 1977 Act, which prohibited eviction without due process of law, precluded him from raising his personal circumstances in the county court as justification for remaining in the property and was therefore incompatible with the right to respect for his home under Article 8 of the Convention. He further contended that the defendants’ decision to invoke section 3 to obtain a possession order was incompatible with the claimant’s right to a fair hearing under Article 6.
Held: The application was dismissed.
Section 3 of the 1977 Act did not preclude a county court from considering an Article 8 defence. It merely prohibited property owners, such as the defendants, from repossessing a property without first seeking a possession order in the court. The requirement to seek an order, rather than to recover possession without any supervision, could not be incompatible with Article 8. Coupled with the other relevant legislation, section 3 cases did not fall within the exceptional category of cases identified by the House of Lords as gateway (a) cases, which were beyond the boundary of democratic solutions to the problem of allocating scarce public housing Kay v Lambeth London Borough Council [2006] UKHL 10; [2006] 2 AC 465 and Doherty v Birmingham City Council [2008] UKHL 57; [2008] 3 WLR 636 considered. Further, the availability of gateways (a) and (b) to challenge possession proceedings was compatible with Article 8: McCann v United Kingdom 19009/04 [2008] 2 EGLR 45; [2008] 28 EG 114 considered; Kay and Doherty applied.
The claimant’s Article 6 rights had not been breached. Since he had full access to the High Court and the county court to determine his claim to remain in occupation of the property under national law, Article 6 had been satisfied when section 3 of the 1977 Act was invoked.
Finally, permission to appeal to the Court of Appeal should be granted because the case raised matters of public importance, although it was not appropriate for a so-called “leapfrog appeal” to the Supreme Court.
Toby Vanhegan (instructed by ARKrights Solicitors, of Watford) appeared for the claimant; Simon Brilliant (instructed by Ascham Homes Ltd) appeared for the defendants; Jessica Simor (instructed by the Treasury Solicitor) appeared for the interested party.
Eileen O’Grady, barrister
