Public Housing Law Seminar Kay and Doherty : practical issues

1. Public Housing Law SeminarKay and Doherty:practical issues by Kelvin Rutledge

2. Public-law defences to private law claims: the position pre-HRA Prior to the HRA, the general position was represented by Cocks v Thanet DC [1983] 2 AC 286 in which the House of Lords held that it was both contrary to public policy and an abuse of process to seek to establish an infringement of a person’s rights under public law by a public body by action and thus evade the safeguards provided under RSC O.53 (CPR 54).

3. Two exceptions to the general rule: 1.London Borough of Wandsworth v Winder [1985] AC 461 - where the defence met the claim ‘head-on’; 2.Avon County Council v Buscott[1988] QB 656 – where the public law challenge was collateral to the claim. If the court hearing it was satisfied there was a “real prospect of success”, it could adjourn the proceedings pending a judicial review

4. Human Rights Act 1998 Section 6 - Acts of public authorities “(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.” Section 8 Judicial remedies “(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.”

5. L B Harrow v Tarik Qazi [2003] UKHL 43 Issue - whether Article 8 barred the local authority’s common law right to recover possession against a secure tenant whose joint tenant had served notice to quit on the authority. Q’s case was rejected. Held - accepting (by a majority) that Q’s accommodation remained, for the purposes of Article 8(1), his “home”, the HL held that Article 8 did not give a right to a home only a right to respect for a person’s home as an aspect of his right to privacy. Application of the common law, with a view to making the premises available for letting to others on the authority’s housing list, did not violate the essence of the right to respect for the home under Article 8(1). The case law of the ECtHR showed that contractual and proprietary rights to possession could not be defeated by a defence based on Article 8. Consequently, it was unnecessary to consider whether any interference was permitted by Article 8(2).

6. Connors v United Kingdom (2004) 40 EHRR 189 C and his family lived as licensees on a local authority gipsy site for most of the preceding 16 years when, in January 2000, they were given notice to quit. The notice was prompted by complaints about the behaviour on the site of some members of the applicant’s family or their guests, which were said to be a breach of the license conditions. The applicant did not leave and the local authority brought possession proceedings. C’s attempt to seek judicial review of the authority’s decision to evict failed. The Strasbourg court held that judicial review was not an adequate safeguard in this case. It reasoned: “… the eviction of the applicant and his family from the local authority site was not attended by the requisite procedural safeguards, namely the requirement to establish proper justification for the serious interference with his rights and consequently cannot be regarded as justified by a 'pressing social need' or proportionate to the legitimate aim being pursued. There has, accordingly, been a violation of Article 8 of the Convention.”

7. Kay & Others v L B Lambeth [2006] UKHL 10 In light of the apparent inconsistency between Qazi and Connors, the House of Lords gave leave to appeal in Kay and heard it by a committee comprising 7 members. K and others sought to defend possession proceedings, amongst other grounds, on the basis that their eviction would breach their Article 8 rights. They had occupied ‘short-life’ accommodation owned by Lambeth Council and let to them by Lambeth’s licensee, London & Quadrant Housing Trust, in some cases for over twenty years. Vis-à-vis LQHT they were secure tenants but Lambeth, as superior landlord, sought to evict them as trespassers relying on its common law right to possession. The House of Lords, in agreement with the decisions of the Court of Appeal and of the trial judge, held that Mr Kay’s Article 8 defence disclosed no reasonable ground for defending the claim and must be struck out.

8. Para 110 of Lord Hope’s speech “… I would hold that a defence which does not challenge the law under which the possession order is sought as being incompatible with the article 8 but is based only on the occupier's personal circumstances should be struck out. I do not think that McPhail v Persons, Names Unknown [1973] Ch 447 needs to be reconsidered in the light of Strasbourg case law. Where domestic law provides for personal circumstances to be taken into account, as in a case where the statutory test is whether it would be reasonable to make a possession order, then a fair opportunity must be given for the arguments in favour of the occupier to be presented. But if the requirements of the law have been established and the right to recover possession is unqualified, the only situations in which it would be open to the court to refrain from proceeding to summary judgment and making the possession order are these: (a) if a seriously arguable point is raised that the law which enables the court to make the possession order is incompatible with article 8, the county court in the exercise of its jurisdiction under the Human Rights Act 1998 should deal with the argument in one or other of two ways: (i) by giving effect to the law, so far as it is possible for it do so under section 3, in a way that is compatible with article 8, or (ii) by adjourning the proceedings to enable the compatibility issue to be dealt with in the High Court; (b) if the defendant wishes to challenge the decision of a public authority to recover possession as an improper exercise of its powers at common law on the ground that it was a decision that no reasonable person would consider justifiable, he should be permitted to do this provided again that the point is seriously arguable: Wandsworth London Borough Council v Winder [1985] AC 461. The common law as explained in that case is, of course, compatible with article 8. It provides an additional safeguard.”

9. “Gateway (a)“ Either (i) interpret law in ECHR-compliant way, or (ii) adjourn pending incompatibility challenge; “Gateway (b)” Public-law challenge in the proceedings themselves on traditional judicial review grounds

10. McCann v UK (App. No. 19009/04, 13 May 2008) Factually similar to Qazi The landlord authority, having rehoused the applicant’s wife and children under its domestic violence policy, sought possession against the husband on the ground of the wife’s notice to quit. The Fourth Section of the ECtHR held, without the benefit of an oral hearing, that the lack of adequate procedural safeguards in possession proceedings violated the husband’s right to respect for his home. The decision in McCann was given after oral argument in Doherty, but before judgment was given in that case. In the meantime, the UK Parliament had addressed the matter in the Housing and Regeneration Bill 2008.

11. William Doherty & Others v Birmingham CC [2008] UKHL 57 D appealed against the dismissal of his appeal against an order for his eviction from a caravan site owned by the respondent local authority on the basis that his removal would violate his Article 8 rights. He had been granted a licence by the local authority to station a caravan on the site, used as a gypsy and travellers’ caravan site, in 1987. When the local authority served notice to quit, D and his family had been resident on the site for 17 years. The local authority asserted that it required vacant possession to carry out essential improvement works, and that once the works were completed the site was to be managed as temporary accommodation for travellers. D maintained that the local authority was only entitled to an order for possession if it was proportionate in all the circumstances of the case, and that the circumstances of the instant case did not satisfy that test. He relied on gateways (a) and (b).

12. In the House of Lords: Lords Rodger and Scott agreed with the speeches of Lords Hope and Walker; Lord Walker agreed that Lord Hope’s approach is binding [123], but had misgivings heightened by McCann; Lord Mance’s views were in a minority. But he identified what his view of the majority was [140, 164]. The ratio appears to be found primarily in the speech of Lord Hope The decision was to remit the case to the High Court for a determination as to whether Gateway (b) applied because it was arguable that it might be unreasonable to issue a notice to quit after 17 years: per Lords Hope [54]; Scott [77]; Walker [124]

13. On overruling Kay: Constitutionally it would have taken a committee of 9 to overrule the decision of the majority reflected in paragraph 110 of Kay, as the Committee in Doherty recognised: per Lords Hope [19]; Scott [61] and Walker [115]. The Committee found, therefore, that paragraph 110 of Kay remained good law but requires some “modification”: per Lords Hope [19/22]; Scott [61] and Walker [108]

14. Lord Hope’s “basic rule” (para 22): “So I must make it clear at the outset that nothing that I may say in this opinion is to be understood as detracting in any way from the basic law as laid down by the majority in Qazi and re-affirmed by the majority in Kay. The effect of those decisions was summarised by Baroness Hale in Belfast City Council v Miss Behavin' Ltd[2007] 1 WLR 1420, para 36: ‘… there are situations in which the court is entitled to say that the legislation itself strikes a fair balance between the rights of the individual and the interests of the community, so that there is no room for the court to strike the balance in the individual case. That is what this House decided in Kay v Lambeth London Borough Council[2006] 2 AC 465.’ The basic rule is that such interference with the right to respect for the home as may flow from the application of the law which enables a public authority to exercise its unqualified right to possession does not violate the essence of the Convention right. Unless the legislation itself can be attacked, this is a conclusion which can be applied to all cases of this type generally. It is not open to the court, once it has decided in any individual case that the effect of the legislation is that the public authority's right to possession is unqualified, to hold that the exercise of that right should be denied because of the occupier's personal circumstances.

15. The “modification” Gateways (a) and (b) are not hermetically sealed ECHR considerations can enter via gateway (b) Super-Wednesbury approach in cases where domestic law lacks sufficient safeguards

16. Cases falling within the “basic rule” Qazi Kay Price? Taylor Pinnock

17. Exceptional cases Doherty Doran McCann ?

18. Post-Doherty decisions In Doran v Liverpool City Council [2009] EWCA Civ 146 The CA was concerned with a decision ordering the appellant, an Irish traveller, to deliver up vacant possession of a pitch at a traveller site to the respondent local authority. The Court held that if a licensee wished to advance public law grounds for not making a possession order, he or she had to show a seriously arguable case that the local authority's decision to recover possession was one which no reasonable person would consider justifiable, and the submission in the instant case that no reasonable local authority would have served on the appellant a notice to quit her pitch on a traveller site was hopelessly unarguable.

19. Toulson LJ analysed the points on which all 7 members of the Appellate Committee in Kaywere agreed, the point on which there was disagreement and how he saw the position post-Doherty. He said there was agreement in Kay as follows: “1. If a licensee wishes to advance public law grounds for not making a possession order, it is for the licensee to raise the point. 2. There are two potential grounds or gateways (to use the language of later authorities) for making such a challenge; (a) that the law which requires the court to make a possession order is itself incompatible with the Convention; (b) that the local authority's exercise of its power to serve a notice to quit and seek a possession order was unlawful on public law grounds. (There was sharp disagreement as to the breadth of the latter ground or gateway) …

20. Toulson LJ (cont.) 3. Where either ground is raised, the court must first consider whether the licensee has a seriously arguable case. As to that, Lord Bingham said at para 39: ‘This question should be decided summarily, on the basis of an affidavit or of the defendant's evidence, suitably particularised, or in whatever other summary way the court considers appropriate. The procedural aim of the court must be to decide this question as expeditiously as is consistent with the defendant having a fair opportunity to present his case on this question.’ 4. If the court considers that the defence sought to be raised on either or both grounds is not seriously arguable, the court should make a possession order. 5. Where a seriously arguable challenge is raised on the first ground, the court has either to decide the case itself, doing the best it can to arrive at a result which is compatible with the Convention, or it may refer the case to the High Court. 6. Where a seriously arguable issue is raised on the second ground, the court should decide it. In other words, the licensee is not required to pursue such a challenge by way of a separate judicial review application but can raise it as a defence to the claim for possession.

21. As to the effect of Doherty, Toulson LJ saw this as two fold (paras 48-52): “First, there is no formulaic or formalistic restriction of the factors which may be relied upon by the licensee in support of an argument that the council's decision to serve a notice to quit, and seek a possession order, was one which no reasonable council would have taken. Such factors are not automatically irrelevant simply because they may include the licensee's personal circumstances, such as length of time of occupation. In Doherty, where the family had been in occupation for a substantial time without causing any trouble, but the council wanted to use the site in a different way, it might also be thought relevant whether the council had taken any steps to offer the family, or help them to acquire, alternative accommodation.

22. Secondly, the question whether the council's decision was one which no reasonable person would have made is to be decided by applying public law principles as they have been developed at common law, and not through the lens of the Convention. There is no conflict between these two propositions, which should be capable of being applied without additional complexity. As Baroness Hale observed in Kay at para 190, in a passage cited by Lord Walker in Doherty at para 108: ‘It should not be forgotten that in an appropriate case, the range of considerations which any public authority should take into account in deciding whether to invoke its powers can be very wide: see R v Lincolnshire County Council ex parte Atkinson (1995) 8 Admin LR 529; R (Casey) v Crawley Borough Council[2006] EWHC 301 (Admin).’ Having said that the question whether the council’s decision was unreasonable has to be decided by applying public law principles as they have been developed at common law, it is to be remembered that those principles are not frozen. Even before the enactment of the HRA, our public law principles were being influenced by Convention ways of thinking. Since its enactment, the process has gathered momentum. It is now a well recognised fact that the Convention is influencing the shape and development of our domestic public law principles, whether one uses the metaphors of embedding, weaving into the fabric, osmosis or alignment. (See the judgment of Lord Walker in Doherty at para 109.)”

23. Taylor v Central Bedfordshire Council [2009] EWCA Civ 613 The CA was concerned with a different factual situation to Doran but similar to Kay where a local authority had leased land to another authority for three years and sub-leased to a housing association to enable it to grant assured shorthold tenancies to homeless persons. Rejecting the occupiers’ Article 8 defences the Court, applying Kay, held that although the decision of a public authority was subject to judicial review on ordinary public law principles, it could not be a ground of challenge that the authority which otherwise had an absolute right to possession had failed to take account of personal circumstances. Such a defence should be struck out. The personal interests safeguarded by Article 8 were to be regarded as sufficiently safeguarded by the fulfilment of the requirements for the recovery of possession by the landowner laid down by the statute or by the common law.

24. Waller LJ said (para 45): “…Even if one made the assumption that the public authority was aware of the personal circumstances of the occupiers, their obligation to take account of them could never make it unreasonable to take proceedings for possession. Provided they could establish their absolute right to possession, personal circumstances could only be relevant to the extent to which a court was prepared to postpone execution, which a public authority would be entitled to leave to the court.”

25. Manchester City Council v Pinnock [2009] EWCA Civ 852 The CA considered the application of Doherty to the demoted tenancy scheme under the Housing Act 1996. Reviewing all the authorities, including Taylor and Doran, Stanley Burnton LJ said: “In my judgment, two simple propositions follow from these authorities. First, a landlord deciding to seek possession in a statutory context such as the present, and a court making an order for possession, is acting so as to give effect to or enforce statutory provisions, and if those provisions are incompatible with Convention rights, the landlord’s decision and the order of the county court is nonetheless lawful by virtue of section 6(2)(b) of the Human Rights Act 1998. Secondly, on a judicial review of the landlord’s decision, the applicable grounds are those applicable on a non-Convention domestic review, subject to the rationality test extended as stated by Lord Hope in Doherty and commented upon in Doran and Taylor.”

26. Practical considerations: Arguability Whose duty to raise issue? Adjournment/stay Disclosure Track allocation Policy revision

27. Forthcoming Cases (Nov 2009): Manchester CC v Mushin L B Hounslow v Powell

28. Public Housing Law SeminarKay and Doherty:practical issues by Kelvin Rutledge