Local authority – Demoted tenancy – Anti-social behaviour – County court making demoted tenancy order – Respondent landlords seeking possession – Whether procedure for terminating demoted tenancy and obtaining possession compatible with human rights – Appeal dismissed
The appellant occupied a house under a secure tenancy. The respondent landlords were granted a demotion order, under section 82A(2) of the Housing Act 1985, on the grounds that the appellant’s son had displayed anti-social behaviour while living at the property and had criminal convictions. The demotion order would bring to an end the appellant’s secure tenancy and create a demoted tenancy, which could be terminated.
The respondents received further allegations of the son’s anti-social behaviour and sought possession of the property. They served notice pursuant to section 143E of the Housing Act 1996. The appellant contested the allegations and requested a review of the decision to terminate her tenancy. An officer appointed by the respondents held a review hearing, which the appellant attended without legal representation. He concluded that, on the facts, a case for possession had been made. The respondents issued a claim for possession in the county court, but those proceedings were stayed pending the appellant’s application for judicial review of the decision to terminate her tenancy.
By her application, the appellant challenged the compatibility of the Demoted Tenancies (Review of Decisions)(England) Regulations 2004 (SI 2004/1679), which related to demoted tenancies subject to the provisions of the 1985 and 1996 Acts, as amended by the Anti-social Behaviour Act 2003, with Article 6 of the European Convention on Human Rights. The judge found that the demoted tenancy conferred civil rights and imposed obligations to which Article 6 applied, and that, in the light of the decision of the Court of Appeal in R (on the application of McLellan) v Bracknell Forest Borough Council [2001] EWCA Civ 1510; [2002] QB 1129, the respondents’ decision had to be held to have determined those civil rights or liabilities.
On the appellant’s appeal, a further issue arose as to whether the scheme for review under the 2004 Regulations, or by reference to section 101 of the Local Government Act 1972, permitted the review to be delegated to an officer outside the authority in question in order to cure any lack of independence on the part of that authority.
Held: The appeal was dismissed.
The demoted tenancy scheme contained no distinguishing features that would allow the reasoning in McLellan not to apply. Moreover, the approach in that case to schemes such as the introductory tenant scheme and the demoted tenancy scheme had the approval of the House of Lords and, indirectly, the European Court of Human Rights (ECtHR): Runa Begum v Tower Hamlets London Borough Council [2003] UKHL 5; [2003] 2 AC 430, Harrow London Borough Council v Qazi [2003] UKHL 43; [2003] 3 EGLR 109, Kay v Lambeth Borough Council [2006] UKHL 10; [2006] 2 AC 465 and Connors v United Kingdom 66746/01 [2004] 4 PLR 16 considered.
The introductory tenancy scheme with its review procedures and the ability to apply for judicial review had been held to be compliant with Article 8 of the Convention. The correlation between the procedures required for compliance with Article 8(2) and Article 6 made it unlikely that a scheme held to have the requisite procedural aspects so as to comply with Article 8(2) would be held to violate Article 6.
Furthermore, there was nothing to indicate that the ECtHR disapproved of any of the schemes that made up the “complex of system for the allocation of public housing”. Even if section 101 of the 1972 Act would allow another authority to carry out the review function, the possibility that they would do so was unreal. In the demoted tenancy scheme, the tenant already had a court hearing to decide whether he should lose the status of secure tenant. Such tenancies were effectively on probation. It was not necessary to find facts under the scheme and the fact sheet aptly described the position.
Jan Luba QC and Adam Fullwood (instructed by Jackson & Canter) appeared for the appellant; Edward Bartley Jones QC and Paul Burns (instructed by Graeme Kreer, of Liverpool) appeared for the respondents; Daniel Stilitz (instructed by the Treasury Solicitor) appeared for the Secretary of State for Communities and Local Government, as an interested party.
Eileen O’Grady, barrister
