Right to respect for private and family life — Determination of joint tenancy by one tenant — Possession proceedings in county court against remaining former tenant — Whether possible to raise defence based on Article 8 of European Convention on Human Rights — Appeal dismissed
The respondent council let a two-bedroom house to the appellant and his wife on a secure tenancy. The wife left the premises, alleging domestic violence by the appellant, and determined the joint tenancy by serving a notice to quit. The council informed the appellant of the termination of the tenancy, advised him to vacate the premises, and suggested that he approach their homeless persons unit for assistance and advice. They informed him of their general policy of seeking a possession order in cases where a secure tenancy had been determined by a joint tenant’s notice to quit but where the other former tenant remained in occupation.
The appellant continued to live in the house with his 14-year-old son without the council’s consent. The council brought possession proceedings. The judge determined a number of preliminary issues, and, as a consequence of his decision on those issues, made an order for possession. The appellant appealed. He contended that the council’s declared policy, which they maintained was consistent with the Housing Acts, would, in his case, result in an interference with his right to respect for his private and family life under Article 8 of the European Convention on Human Rights. The central issue was whether either macro considerations, relating to the overall policy of the legislation and the council’s general housing policy, or micro considerations, as to the appellant’s treatment in the particular case, could form a defence to a possession action in the county court.
Held: The appeal was dismissed.
Article 8(1) had been engaged by the council’s decision to seek possession. However, the provisions that palliated the effects of that decision meant that the scheme of the legislation satisfied the requirements of Article 8(2): Harrow London Borough Council v Qazi [2003] UKHL 43; [2003] 3 WLR 792 applied.
Assuming that the council’s decision to seek possession was unreasonable, that illegality could not affect the validity of the possession proceedings. The county court’s adjudication of the private property rights contained no public law element. The council had not terminated the tenancy; they had merely decided to seek a possession order against the appellant, a trespasser. The council had not made any decision that purported to affect any of the appellant’s private property rights, and, accordingly, he did not have a private law defence to the council’s claim. A public law challenge to the correctness of the decision to sue him would, in principle, have been available had the decision been irrational. However, since the appellant was not seeking to invoke either Article 8 or the arguments as to rationality in support of any private law right, the only manner of proceeding was by way of judicial review: R (on the application of Gangera) v Hounslow London Borough Council [2003] EWHC 794 (Admin); [2003] HLR 68 and Wandsworth London Borough Council v Michalak [2002] EWCA Civ 271; [2003] 1 WLR 617 applied.
Once it had been established that the council were following the statutory scheme, they were not under a duty to consider whether they wanted the appellant to remain in his present accommodation. The decision to follow the scheme implied that the council would consider the appellant’s position as a homeless person, having regard to the relevant factors, and that he could apply under Part IV of the Housing Act 1996 for a secure tenancy, according to the council’s published points system. In that way, he had been treated equally with every other person with a need for accommodation in the borough.
Alastair Panton (instructed by Lovell Chohan & Co) appeared for the appellant; Matthew Hutchings (instructed by the solicitor to Hounslow London Borough Council) appeared for the respondents.
Sally Dobson, barrister
