Seeking possession
Date: 27 November 2009
Authors: Annette Cafferkey
Issue: Vol 159, Issue 7395
Categories: Features, Public
Over the course of the last year or so there has been a spate of cases the effect of which increases the extent to which public sector landlords are open to challenge when seeking possession. The extent of this increase is not clear, however.
The first decision referred to below establishes that registered social landlords (RSLs) can subject to the Human Rights Act 1998 (HRA 1998) and amenable to judicial review.
The remainder of the article covers two aspects: first, it traces the debate that has developed around the question of whether an unqualified entitlement to possession can be defeated in the county court using arguments based on the occupier’s personal circumstances; and, second, it outlines the tension that exists between European Court of Human Rights (ECtHR) and the domestic courts on this point.
RSLs—public authority
In R (Weaver) v London & Quadrant Housing Trust [2009] EWCA Civ 587, [2009] All ER (D) 179 (Jun) the administrative court declared the London and Quadrant Housing Trust (the trust), a registered social landlord, was a public authority for the purposes of the HRA 1998 when deciding to terminate a tenancy because such a decision was part of its function to manage and allocate its stock. The trust was amenable to judicial review.
The appeal against this decision was dismissed by a majority decision of the Court of Appeal. Plainly, the significance of this decision cannot be overstated.
The Court of Appeal focused on the question whether the decision to recover possession could be a “private act” within meaning of HRA 1998, s 6(3)(b). It was held that this had to be considered in the context of the trust’s activities—the provision of housing was a public function.
Provision and termination of accommodation were bound up together: the provision of housing was a public function and it therefore followed that the decision to terminate could not be considered an act of a private nature.
Unqualified entitlement to possession—does it still exist?
Can a claim based on an unqualified right to possession be defeated? The debate on this issue has escalated as a result of the increasingly apparent tension that exists between the UK courts and ECtHR.
In Lambeth LBC v Kay; Leeds CC v Price [2006] UKHL 10, [2006] 2 AC, Lord Hope stated that where the requirements for possession had been made out in a claim where the right to possession was unqualified the court could only refrain from ordering possession in two instances: (a) if it was seriously arguable point was raised that the law underlying the claim for possession was incompatible with Art 8 (if this was not alleged a defence based on the defendant’s personal circumstances should be struck out), or (b) if the defendant wished to challenge the decision by the authority to recover possession as an improper exercise of its powers at common law on the ground that no reasonable person would consider justifiable. These two routes have since been labelled “gateway (a)” and “gateway (b)”.
After the decision in Kay, the ECtHR in McCann v UK App No 19009/04; [2008] HLR 40 held that there had been a violation of Art 8 in circumstances where Mr McCann had been unable to defend the claim for possession brought against him by his local authority landlord because they had proceeded upon the expiration of a notice to quit, which gave them an absolute entitlement to possession.
The European court held there had been no opportunity for an independent tribunal to examine whether the claim for possession and the loss of Mr McCann’s home was proportionate and reasonable under Art 8(2) and that his Convention right had, therefore, been breached.
In Birmingham CC v Doherty [2008] UKHL 57, [2008] HLR 45 the House of Lords again considered the extent to which an unqualified claim for possession could be defended. This was a “traveller” case in which the authority had served on the occupiers a notice to quit. Possession was ordered in May 2004 at which time the court had no power to suspend that order (the statutory law has since changed).
Despite the decision in McCann, Lord Hope endorsed what he had said previously in Kay and made clear that, as a matter of basic law, it was not open to the court—once it had decided that the claim to possession was unqualified—to hold that the exercise of that right should be denied because of the occupier’s personal circumstances; the court could only refrain from making an order if gateway (a) or gateway (b) applied. Even if the domestic law was held to be incompatible and could not be construed otherwise, the domestic law had to be applied unless a public law defence could be established under gateway (b).
How wide, then, is gateway (b)? Will it permit an occupier’s personal circumstances to prevail over an unqualified right to possession? In Doherty Lord Hope said it was limited to conventional judicial review grounds (rather than arguments based on proportionality and unjustified breaches of Art 8). He went on to say, however, that it would be : “Unduly formalistic to confine the review strictly to traditional Wednesbury grounds.
The considerations that can be brought into account are wider. An examination of the question whether the respondent’s decision was reasonable, having regard to the aim which it was pursuing and to the length of time that the appellant and his family have resided on the site [a personal circumstance], would be appropriate.
But the requisite scrutiny would not involve the judge substituting his own judgment for that of the local authority...the test of reasonableness should be...whether the decision to recover possession was one which no reasonable person would consider justifiable.”
Since the decision in Doherty the lower courts have grappled with questions concerning extent to which they can entertain public law defences and to what extent such defences can be based on the occupier’s personal circumstances.
In Doran v Liverpool CC [2009] EWCA Civ 146 the lower court made a possession order against a traveller which required her to vacate the pitch on which her caravan was situated. In considering her appeal Toulson LJ said, in summary:
(i) there was no formulaic or formulistic restriction of the factors which could be relied upon by an occupier in support of an argument that the council’s decision to serve a notice to quit was one which no reasonable authority would have taken; such factors are not automatically irrelevant simply because they include the occupier’s personal circumstances;
(ii) the question whether the council’s decision was one which no reasonable person would have made should be decided by applying public law principles as they have been developed at common law, and not through the lens of the Convention although it should also be remembered that those principles are not frozen; and
(iii) the onus is on the occupier to establish that the decision to evict was unlawful; in doing so it must be shown that no reasonable authority would have taken it in the circumstances known, or which ought to have been known, at the time of the decision. It was noted that this was a high test, one that is rarely likely to be satisfied when the decision is made in good faith.
In Central Bedfordshire Council v Taylor [2009] EWCA Civ 613 the Court of Appeal considered whether a different approach applied where the right to occupy had terminated and the occupier was a trespasser. It was not disputed that the decision of the authority to seek possession could be the subject of judicial review and that the county court was the correct forum for that review. Nor was it disputed that in Doherty Lord Hope had intended to extend the scope of judicial review beyond rationality.
Ultimately, however, the Court of Appeal held that post-Doherty trespass cases were unlikely to be decided any differently from those that had gone before (such as Kay).
It could not be a ground of challenge that the public authority who otherwise had an absolute right to possession had failed to take account of personal circumstances. It was said that, whilst the question of whether an authority’s decision to seek possession is “reasonable” post-Doherty goes beyond questions of rationality and that the authority should take account of the personal circumstances known to it, it does not follow that there would ever be circumstances in which it would be unreasonable to seek possession.
Can a public law defence be used to defend a possession claim brought to determine a demoted tenancy? In Manchester City Council v Pinnock [2009] EWCA Civ 852 the authority had obtained a demotion order against the defendant on 31 March 2005 at which point the defendant lost his secure status and became a demoted tenant. A court may only make a demotion order if it is reasonable to do so.
Thereafter the authority sought to determine the demoted tenancy and, accordingly, issued proceedings in the county court. A court must make a possession order if it is satisfied that the authority has complied with the relevant statutory requirements before issuing the claim.
The court gave judgment for the authority but, in doing so, decided various issues against them. Both parties appealed. In allowing the authority’s cross-appeal, the Court of Appeal held that case law had established that an authority’s decision to terminate a demoted tenancy is not subject to the requirements of proportionality under Art 8. This aspect was covered by the proceedings that reduced the tenancy from secure to demoted.
If a landlord sought possession against a demoted tenant and it had complied with the relevant statutory requirements the county court had to order possession—there was no scope for judicial review by the county court in such a claim. Even if the decision to terminate the demoted tenancy was challenged in the administrative court, given that a previous court would have already found it reasonable to make a demotion order, it should be cautious in the extreme before quashing that decision.
Convention defence, yes or no?
While the decision in Doherty suggests that the scope for defending possession claims brought on a basis of “absolute” entitlement is greater than previously believed, in particular where personal circumstances are relied on by the defendant, it could be said that this change is more apparent than real. That said, it is clear that public law defences can be run in the county courts and while this is the case, the county courts must deal with them.
The tension with Europe remains unresolved. The European court has repeatedly held that where the loss of a person’s home is at stake that person should, in principle, be able to have the proportionality and reasonableness of that measure decided by an independent tribunal, in accordance with their convention rights.
More recently, in Cosic v Croatia App No 28216/06 the European Court (again) held that a possession order made against an occupier whose lease had expired and who had no security of tenure was in violation of Art 8: “The guarantees of the Convention require that the interference with the applicant’s right to respect for her home be not only based on the law but also on be proportionate under Art 8(2)…regard being had to the particular circumstances of the case...no legal provision of domestic law should be interpreted and applied in a manner incompatible with the Convention.”
Thus, the conflict is clear: the domestic courts do not countenance a full Art 8(2) defence to a possession claim that asserts and unqualified entitlement to possession. Europe, on the other hand, does. It may be that the difference between the two is simply a difference of emphasis, although that debate is probably best left for discussion on another occasion.
Annette Cafferkey, barrister at Arden Chambers
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