Human rights – Possession proceedings – Gateway (b) defence – Possession orders sought by local authorities against persons occupying premises under introductory tenancy regime and homelessness regime under Housing Act 1996 – Whether gateway (b) defence available in county court – Extent of defence – Appeals dismissed
These were five appeals against decisions of the county court in possession proceedings brought by local authority landlords against occupiers of residential accommodation. In three of the appeals, the occupiers had held tenancies granted by the relevant local authority under the introductory tenancy regime, set out in Chapter I of Part V of the Housing Act 1996. The other two appeals concerned occupiers who had been housed pursuant to the local authority’s duties to homeless persons under Part VII of the 1996 Act. None of the five occupiers enjoyed security of tenure under the relevant statutory provisions nor had any private law defence to the possession claim. In all five cases, the occupiers claimed that the possession proceedings breached their rights under Article 8 of the European Convention on Human Rights. Each relied on the “gateway (b)” public law defence identified by the House of Lords in Kay v Lambeth London Borough Council [2006] UKHL 10; [2006] 2 AC 465 and Doherty v Birmingham City Council [2008] UKHL 57; [2009] 1 AC 367, challenging the lawfulness of the local authority’s decision to seek possession.
In the three introductory tenancy cases and one of the homelessness cases, the county court rejected the defence and granted a possession order; the occupiers appealed. In the other homelessness case, possession was refused on the basis of concessions made by the local authority as to the reasons for seeking possession; the local authority appealed. The central issue on the appeals was the extent to which a gateway (b) defence could be raised in county court possession proceedings and whether it should have succeeded in any of the individual cases.
Held: The appeals were dismissed.
(1) An occupier defending possession proceedings could, in principle, run a public law defence in the county court even in a case where he or she did not have a private right; the public law defence did not depend on the existence of the private right: Doherty applied. None the less, the county court would not have jurisdiction to consider a gateway (b) defence if the provisions of the statute setting up a particular scheme excluded that right. The legislative regime relating to homelessness did not preclude a gateway (b) defence from being raised in the county court: Barber v Croydon London Borough Council [2010] EWCA Civ 51; [2010] NPC 17 and McGlynn v Welwyn Hatfield District Council [2009] EWCA Civ; [2009] 2 P&CR DG 8 applied. However, under the introductory tenancy regime, the county court was obliged to make a possession order if the procedure under section 128 of the 1996 Act had been followed, subject only to a power to adjourn the proceedings to enable an application for judicial review to be made where such a point was arguable in the traditional way. That conclusion was consistent with the position under the regime for demoted tenancies; section 127(2), dealing with possession under introductory tenancies, should be construed in line with the similarly worded section 143D(2) relating to demoted tenancies: Manchester City Council v Cochrane [1999] 1 WLR 809 and Pinnock v Manchester City Council [2009] EWCA Civ 852; [2010] 1 WLR 713 applied (although a decision of the Supreme Court was pending on the latter case).
(2) Although conventional judicial review was increasingly informed by principles of fundamental rights, a gateway (b) challenge did not permit a proportionality review under Article 8(2). The assumption should be that laws passed by parliament were compliant with Article 8. Where the relevant statutory regime had been found to be compliant with Articles 8 and 6, as with both the homelessness provisions and introductory tenancy regime, it would only be in exceptional circumstances that a gateway (b) defence to possession proceedings could be established: Sheffield City Council v Smart [2002] EWCA Civ 4; [2002] HLR 34 and R (on the application of McLellan) v Bracknell Forest Borough Council [2001] EWCA Civ 1510; [2002] QB 1129 applied. Under the introductory tenancy regime, the question for the county court would be whether there was a highly exceptional circumstance that should lead it to adjourn the matter to permit an application for judicial review in the Administrative Court. Circumstances, of a personal nature or otherwise, that parliament must have contemplated as likely to be present in the context of such a scheme could not be considered exceptional. A case should not be adjourned unless it was arguable that no reasonable authority, with the duties it had in managing its social housing, could have taken the decision to seek possession. In the case of the homelessness legislation, if a judicial review were to take place in the county court, that court should have regard to the content and purpose of the legislative scheme in Part VII of the 1996 Act, and whether the occupier continued to be owed a duty under that legislation, in determining whether the circumstances were so exceptional as to afford a gateway (b) defence to a non-secure tenant, occupying accommodation as a homeless person, on whom a notice to quit had been served.
(3) Gateway (b) could apply to any decision of the local authority relevant to seeking possession that could be the subject of judicial review. Accordingly, it was not confined to the initial decision or notice to quit, but could apply also to the decision to bring or continue proceedings: Central Bedfordshire Council v Taylor [2009] EWCA Civ 613; [2009] 37 EG 106.
(4) Applying those principles to the cases under consideration, there were no highly exceptional circumstances such as to found a gateway (b) defence in the first to fourth appeals; in the fifth appeal, the judge had been entitled to dismiss the possession claim on the basis of the concessions made by the appellant local authority.
Jan Luba QC and Paul Whatley (instructed by Glaisyers Solicitors) appeared for the appellant in the first appeal; the respondents, Salford City Council, were not represented; Jan Luba QC and Kevin Gannon (instructed by Scully & Sowerbutts Solicitors) appeared for the appellant in the second appeal; Kelvin Rutledge (instructed by the legal department of Hounslow London Borough Council) appeared for the respondents; Jan Luba QC and Adam Fullwood (instructed by Zermansky & Partners) appeared for the appellant in the third appeal; Ashley Underwood QC and Helen Greatorex (instructed by the legal department of Leeds City Council) appeared for the respondents; Jan Luba QC and Michael Singleton (instructed by Evans Derry Binion Solicitors) appeared for the appellant in the fourth appeal; Jonathan Manning (instructed by the legal department of Birmingham City Council) appeared for the respondents; Jon Holbrook (instructed by the legal department of Manchester City Council) appeared for the appellants in the fifth appeal; Jan Luba QC and Adam Fullwood (instructed by Platt Halpern Solicitors) appeared for the respondent; Daniel Stilitz QC and Ben Hooper (instructed by the Treasury Solicitor) appeared for the secretary of state for communities and local government, as intervener.
Sally Dobson, barrister
