Local authority – Demoted tenancy – Anti-social behaviour – County court granting demoted tenancy order – Defendant landlords seeking possession – Whether procedure for terminating demoted tenancy and obtaining possession compatible with human rights – Application dismissed
The claimant occupied a house under a secure tenancy. The defendant landlords applied for, and were granted, a demotion order under section 82A(2) of the Housing Act 1985 on the grounds that the claimant’s son had displayed anti-social behaviour while living at the property and he had criminal convictions. The effect of the demotion order was to terminate the claimant’s secure tenancy and create instead a demoted tenancy, which could be terminated.
The defendants received further allegations of the son’s anti-social behaviour. They therefore decided to seek possession of the property and served notice pursuant to section 143E of the Housing Act 1996. The claimant contested the allegations of anti-social behaviour and requested a review of the decision to terminate her tenancy. A council officer appointed by the defendants held a review hearing, which the claimant attended without legal representation. He concluded that, on the facts, a case for possession had been made.
The defendants issued a claim for possession in the county court, but those proceedings were stayed pending the claimant’s application for judicial review of the decision to terminate her tenancy.
By her application, the claimant 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. She submitted that a review by a council officer of an earlier decision of another officer of the same council, namely that a person’s demoted tenancy should be terminated as permitted by the 2004 Regulations, violated Article 6 in that such a review had not been carried out by an independent and impartial tribunal.
Held: The application was dismissed.
The claimant’s demoted tenancy conferred civil rights and imposed obligations to which article 6 applied. 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 decision of the defendants’ officer had to be held to have determined those civil rights or liabilities.
Per curiam: Had the point been free from authority, the court would have questioned whether the decision of a reviewing officer engaged Article 6, which applied only to a determination of civil rights and obligations. Such a decision did not determine any right or liability, but was a decision that a local authority would exercise their right to apply to the county court for an order for possession. Unless and until an order for possession was made, the tenancy would be unaffected by the reviewing officer’s decision. If the local housing authority failed to bring possession proceedings within six months of service of the notice, the demoted tenancy reverted to a secure tenancy: section 143B of the 1996 Act.
Article 6 was concerned with procedure, not substance. It could not be used to confer substantive rights such as a right not to be evicted without proof of further anti-social behaviour that parliament had not conferred.
However, neither the proceedings conducted nor the decision made by the reviewing officer infringed the claimant’s rights under Article 6.
In McLellan, the Court of Appeal decided that the provisions relating to the internal local authority review of the decision to seek possession of a property held under an introductory tenancy, together with the judicial review jurisdiction, satisfied Article 6 and the regulations relating thereto were materially indistinguishable from the regulations relating to demoted tenancies.
There was no reason to hold that the review procedure could not be operated fairly or that the remedy of judicial review would not provide an adequate safeguard to tenants enabling them to challenge any unfairness or infringement of their European Convention rights: Begum v Tower Hamlets London Borough Council [2003] UKHL 5; [2003] 2 AC 430; [2002] EWCA Civ 239; [2002] 1 WLR 2481 and Tsfayo v United Kingdom 60860/00 [2007] HLR 19 considered.
Adam Fullwood (instructed by Jackson and Canter) appeared for the claimant; Paul Burns (instructed by the legal department of Liverpool City Council) appeared for the defendants; 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
