[[2013] EWCA Civ 449
[2013] PLSCS 95
Human rights
Possession
R (on the application of JL) v Secretary of State for Defence
Court of Appeal
Arden, Sullivan and Briggs LJJ
30 April 2013
Possession order – Enforcement – Human rights – Respondent ceasing to have duty to accommodate appellant and her family following husband’s court martial and resignation from armed forces – Respondent nonetheless providing temporary accommodation on compassionate grounds – Respondent later obtaining possession order – Court holding appellant not entitled to rely on defence based on Article 8 of European Convention on Human Rights – Respondent deciding to enforce possession order by evicting appellant – Appellant seeking to advance Article 8 arguments in claim for judicial review of decision to enforce – Such arguments considered but rejected – Appeal dismissed
The respondent maintained a stock of residential properties for the accommodation of members of the armed forces and their families. In 1989, the appellant’s husband resigned from the armed forces following a court martial and the respondent ceased to be under any duty to provide residential accommodation for the appellant or her family. The appellant was nonetheless provided with a four-bedroom house in Leeds, on compassionate grounds, as temporary accommodation until she could obtain council housing. The appellant suffered from health problems and was confined to a wheelchair. One of her daughters suffered from mental health problems, thought to be attributable in part to sexual abuse by her father, while the other, who was the carer for her mother and sister, had a son with Crohn’s disease. From 1993, the respondent made various attempts to recover possession of the premises. By her defence to possession proceedings issued in 2007, the appellant argued that her eviction would be an unjustified interference with her right to respect for her home under Article 8 of the European Convention on Human Rights in light of the numerous health problems suffered by her family. The proceedings were transferred from the county court to the Administrative Court, which made a possession order, stayed for the maximum period of six weeks permitted by statute, after holding that, on the law as it then stood, a residential occupier’s Article 8 rights could not provide a defence to the unqualified right of a property owner to obtain possession, even where that property owner was a public authority.
Subsequently, in Manchester City Council v Pinnock [2010] UKSC 45; [2010] 3 EGLR 113, the Supreme Court departed from the previously accepted view of the law and held that, for domestic law to be compatible with Article 8, a court that was asked to make an order for possession of a person’s home at the suit of a local authority had to be able to assess the proportionality of such an order and consider an Article 8 defence.
In February 2011, the respondent decided to enforce the possession order by evicting the appellant. By that time, permanent accommodation had still not been found for the appellant, although she had made a homelessness application to the city council and been given the highest priority level on their homes register.
The appellant brought a claim for judicial review of the respondent’s decision to enforce the possession order. She advanced grounds of challenge under both domestic law and Article 8. The respondent contended that Article 8 arguments, although available by way of a defence to a claim for possession, could not be deployed to oppose the enforcement of such an order once made. The judge rejected that contention but nonetheless upheld the respondent’s decision to enforce. The appellant appealed.
Held: The appeal was dismissed.
(1) There were no grounds in domestic law for quashing the respondent’s decision to enforce the possession order. A decision not further to prolong the voluntary provision of assistance to the council in discharging their duty to provide temporary, and in due course permanent, accommodation for the appellant and her family called for no further or detailed review of the personal circumstances of the respondent or her family. A decision to enforce a legal right to possession that had already been established in legal proceedings should not be subject to further searching or intensive judicial review in the absence of any relevant change of circumstances. It would have been extraordinary had such a review been permitted or encouraged in relation to a decision made within the six-week period contemplated by statute as the maximum permissible period for a discretionary stay by the court. The mere passage of a substantial further period while the public authority voluntarily refrained from enforcement, without any relevant change of circumstances, could justify no further or more detailed review. The decision to enforce the possession order accorded with all relevant principles of domestic law.
(2) An occupant of premises would not always be precluded from relying on Article 8 arguments by way of opposition to the enforcement of a possession order already obtained by the owner of the property. Article 8 conferred a right that respect be had for a person’s home, such that an interference with that right by a public authority had to be both lawful and a proportionate means of achieving a legitimate end. The court’s task was to subject the process of dispossession by the public authority to a proportionality review. That process might typically involve several stages, beginning with a notice to quit, followed by the issue of possession proceedings, the obtaining of judgment after a hearing and the enforcement of a possession order by obtaining and executing a writ of possession. In the overwhelming majority of cases, the occupant’s Article 8 rights would be appropriately and sufficiently respected by a proportionality review conducted, at the occupant’s request, during the possession proceedings themselves. The court was obliged to conduct such a review only if the occupant requested one by raising an Article 8 defence; it was not required to do so of its own motion. Thus, in the absence of special circumstances, the owner would only be in a position to seek a writ of possession after the occupant’s Article 8 rights had been exhausted, either because they had not been prayed in aid during the possession proceedings or because they had been raised as a defence and rejected. Generally, an attempt to re-litigate the Article 8 issue at the enforcement state, or to litigate it for the first time when it could and should have been raised as a defence in the possession proceedings, would be an abuse of process by the occupant. Nonetheless, there would be exceptional cases, of which the instant case was a powerful example, where the raising of Article 8 rights at the enforcement stage would not be an abuse. One example was where there had been a fundamental change in the occupant’s personal circumstances after the making of the possession order but before enforcement. In the instant case, reliance on Article 8 arguments was not an abuse because the appellant’s Article 8 rights, although vigorously pursued in the possession proceedings, had been held to afford her no defence, whereas it was now recognised that she was entitled to a proportionality review of the enforced loss of her home on the application of the respondent public authority. That review could now only be conducted at the enforcement stage. In the wholly exceptional circumstances of the case, the judge had been correct to accede to the appellant’s request for a proportionality review of the requested eviction.
(3) However, the judge had correctly concluded that the eviction of the appellant and her family was a proportionate and therefore justified interference with her Article 8 rights. The council, not the respondent, had the statutory function of dealing with the appellant’s housing needs arising from her homelessness and her own and from her family’s medical difficulties. There was nothing to show that the council would fall short of full discharge of that responsibility. Where parliament had allocated the responsibility for addressing a person’s Article 8 rights on a particular public authority, the taking of steps by another public authority with no such responsibility, which would have the effect of placing on the responsible authority the burden of addressing those rights, was a powerful form of legitimate aim. The judge had sufficiently considered and taken into account the particular difficulties that the family would face from the prospect of a double move, first to temporary and then to permanent accommodation, and from the prospect of temporary accommodation that might fall short of meeting all their requirements. The respondent had, initially on compassionate grounds, been accommodating the appellant and her family, without any duty or function to do so, for more than 20 years. The appellant could not expect to remain in the respondent’s premises indefinitely.
James Stark (instructed by Davies Gore Lomax LLP, of Leeds) appeared for the appellant; Ben Hooper (instructed by the Treasury Solicitor) appeared for the respondent.
Sally Dobson, barrister
