Gilboy, R (on the application of) v Liverpool City Council & Anor

This is an appeal from a decision of Stanley Burnton J (as he then was) handed down on 15^th October 2007 by which he dismissed Mrs Gilboy’s claim for judicial review. It raises a single point of principle namely whether the internal review procedure for reconsideration by local housing authorities of a decision to terminate a demoted tenancy established by sections 143E-143F of the Housing Act 1996 and the Demoted Tenancies (Review of Decisions (England) Regulations 2004 violates Article 6 of the Convention on Human Rights.

Mrs Gilboy has now obtained other accommodation and the appeal is thus academic but the appeal raises a point which the respondents, the Liverpool Council and the intervening party, the Secretary of State, wish resolved. Since the point will occur in other cases, and is one of significance in the context of the legislation, we agreed to entertain it. Mr Luba QC applied thus to amend the relief that he sought to seek a declaration that the above sections were incompatible with Article 6, and there being no opposition permission was granted.

A major part of the argument involves considering the effect of a decision of the Court of Appeal, in which I gave the lead judgment, McLellan v Bracknell Forest Borough Council [2001] EWCA Civ 1510 [2002] QB 1129. In order, indeed, to set the legislation with which this appeal is concerned in its context it is helpful to start with the legislation, the subject of that decision and with that decision itself.

Both the legislation with which this appeal is concerned and the legislation with which McLellan was concerned are examples of the implementation of government policy relating to accommodation supplied by local councils and particularly with the social consequences of tenants who may behave in a way which disturbs others or demonstrates them to be persons who are not as deserving of the accommodation as others. Under the Housing Act 1985 all tenancies of dwelling houses granted by local authorities (with certain exceptions listed in Schedule 1 to the Act) are secure tenancies: see sections 79 and 80. By section 84(1) of the 1985 Act, the County Court may not make an order for possession of a house let under a secure tenancy save on certain grounds specified in that section and in Schedule 2 to the 1985 Act. The court may still, even if grounds are established, exercise a discretion against granting possession and may only do so if it is satisfied that it is reasonable to do so where the grounds in Part 1 or Part 3 are relied on. Schedule 2 includes grounds such as a tenant creating nuisance or annoyance to others. Section 85 enables the court to adjourn so as to allow for improvement and allows the court to rescind an order for possession if conditions are complied with.

McLellan was concerned with “introductory tenancies”. Introductory tenancies were part of the 1996 legislation. The object was to provide a trial period prior to a tenant becoming a secure tenant. As part of the legislation setting up introductory tenancies the Housing Act 1996 envisages a procedure whereby the landlord could take a decision to terminate the introductory tenancy so that no secure tenancy would be achieved. The landlord has to serve a notice on the tenant saying that the landlord would be asking the court to make an order for possession (section 128(1) of the 1996 Act). Section 128(3) requires the landlord to give reasons and by section 129(2) the tenant can seek a review, i.e. ask the landlord to think again. The Introductory Tenants (Review) Regulations 1997 SI No 72 lay down the procedure the landlord must follow when conducting a review including a requirement for the review to be carried out by a person more senior than the original decision-maker, a requirement for the tenant to be given 5 days notice of any oral hearing and a right for the tenant to be accompanied and to call evidence. If the original decision is upheld, apart from the possibility of seeking judicial review of the same recognised in Manchester City Council v Cochrane [1999] 1 WLR 809 CA, the decision is binding in the sense that the county court is then bound to make an order terminating the tenancy under section 127.

In McLellan the legislation and the procedure set up by it and the regulations were attacked both on Article 8 as well as Article 6 grounds. The Secretary of State, represented by Mr Philip Sales, argued on the appeal that Article 6 was not engaged by the internal review procedures, alternatively that by application of the principle that one must look at the decision-making process as a whole, including any review by the court through judicial review, exemplified by R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295, there was no violation of Article 6. In McLellan the court decided that Article 6 was engaged but applying the “Alconbury” principle dismissed the Article 6 attack. It also dismissed the Article 8 attack which, as I shall indicate, seems to me to be of some relevance to this appeal.

The Government clearly took the view, in the context of the social problems with tenants of councils and housing associations, that it was desirable to have a system under which, if a tenant was a secure tenant but causing or responsible for causing social problems, there should be a procedure under which he could be demoted and with the consequence that once demoted he might not, unless things improved, be reinstated. By the Anti-Social Behaviour Act 2003 there was introduced the concept of a demoted tenant. The Act amended both the 1985 Act and the 1996 Act. There are distinctions between the procedure adopted for demoted tenants and those considered in McLellan for introductory tenants but essentially, subject to one important difference, the demoted tenancy scheme was modelled on the introductory tenancy scheme. The one important difference flows from the fact that a demoted tenant starts with a secure tenancy and before a tenant can be demoted the landlord must apply to the court. By Section 82A(2) of the 1985 Act a Local Housing authority may apply to the county court for a demotion order in respect of a secure tenancy. It is a condition of the making of a demotion order that the court is satisfied both that the tenant, or a person residing in or visiting the dwelling house in question, has engaged, or has threatened to engage, in anti-social behaviour or used the premises for unlawful purposes and that it is reasonable in all the circumstances to make the order. Once the order is made the secure tenancy is at an end. There is created a demoted tenancy and, as Mr Luba stressed, that tenancy will be subject to many if not all the terms of the former secure tenancy, save that it will not be a secure tenancy.

Once a tenant has become a demoted tenant, the landlord must still apply to the court for an order for possession from a demoted tenant (see section 143D(1) of the 1996 Act), but the county court must make an order unless it thinks the procedure for the termination of the demoted tenancy contained in section 143E and 143F has not been followed. In the result, once demoted the tenant is in much the same position as an introductory tenant so far as procedure is concerned. In the demoted tenancy scheme the council must have decided to terminate the tenancy and actually given notice of intent to take proceedings but must inform the tenant of the right of review. The tenant can then seek a review. If there is a request for review “the landlord must review the decision” 143F(2), and under the legislation and the regulations that review must be carried out by “a person of appropriate seniority who was not involved in the original decision”. Subject to the right to seek permission to move for judicial review, if the original decision is upheld on review a court is bound to make an order for possession.

Mr Stilitz, for the Secretary of State, compiled a schedule comparing the provisions of the 1996 Act and the relevant regulations considered in McLellan in relation to introductory tenancies with the provisions and regulations with which this appeal is concerned, dealing with demoted tenancies. Mr Luba QC, for Mrs Gilboy, wished to add some provisions and amend the schedule slightly. Mr Stilitz did not object and I append that amended schedule to this judgment. It summarises the various provisions and it is not, I think, necessary at this stage therefore to set out in full sections 143E and 143F or the regulations. They are to be found conveniently set out in full in the judgment of Stanley Burnton J at paragraphs 6 and 7.

Stanley Burnton J took the view first that he was bound to hold that Article 6 was engaged, although he expressed the view that he himself would not have so concluded, adopting as I understand it very much the argument of Mr Philip Sales which we rejected in McLellan. Second he took the view that he was bound by McLellan to hold that the provisions relating to demoted tenants, being so closely aligned to those relating to introductory tenants, were, if Article 6 was engaged, Article 6 compliant and indeed, agreed with this aspect of the Court of Appeal’s decision.

These were agreed and can be taken in their summary form from the Appellants’ skeleton paragraph 6 to 16.

“6.

The appellant moved into her home at 16 John Street, Liverpool, L3 8NY (“the property”) under the terms of a secure tenancy that commenced on 16^th December 1985. The Council was (and is) her landlord.

7.

On 8^th June 2006 Recorder Moran QC, sitting at Liverpool County Court, granted a demotion order, to expire at midnight on 7^th June 2007, on the grounds that the appellant’s son had been responsible for anti-social behaviour whilst living at the property and because of his criminal convictions.

8.

After the demotion order had been granted, the Council received further allegations of anti-social behaviour by the appellant’s son and a decision was made to terminate the appellant’s demoted tenancy. The decision was made by Mr McDonnell, an officer of the Council, on the basis of seven allegations of anti-social behaviour.

9.

By letter dated 4^th August 2006 the Council informed the appellant of its decision to seek possession of the property and served a notice of proceedings pursuant to section 143E of the 1996 Act. The notice set out the seven allegations of anti-social behaviour relied upon by the council and informed the appellant of her right to request a review of the decision.

10.

The appellant contested the allegations and made a request for a review of the decision to terminate.

11.

On 17^th November 2006 a review hearing took place before Mr Bill Morris, Manager of the Safer Neighbourhood Services Department, who was employed by the Council. He occupies a more senior position in the Council’s hierarchy than Mr McDonnell.

12.

The appellant attended the review hearing without the benefit of legal representation. Mr Morris heard evidence presented by a solicitor employed by the council and from the appellant who disputed all the allegations of nuisance.

13.

By letter dated 21^st November 2006 Mr Morris informed the appellant of his decision and the reasons for it. He wrote:

“In relation to the above review which you attended at Broughton Terrace, after careful consideration of all the facts I have decided that a case has been made for possession of the property that you now occupy namely 16 John Street, Liverpool 3 8NY

I have based my decision on the following facts.

1.

Your son Patrick was convicted at North Liverpool Community Justice Court on 6^th September 2006 for the offences of:-

•

Unauthorised taking of a motor vehicle;

•

Breaching an Anti-Social Behaviour Order;

•

Use of a vehicle without Insurance or a Licence.

2.The witness statement submitted of Marie Taylor which identified acts of anti-social behaviour committed by your son Patrick.

3.

The witness statement submitted of Sue Fenney which identifies an act of anti-social behaviour committed by your son Patrick.

I am satisfied that the acts 1-3 above represent further breaches of your tenancy within the 12-month period of your demoted tenancy.

I have also forwarded my decision to the Neighbourhood Management Service for North Liverpool.”

(Mr Luba and Mr Fullwood put the words in italics in the decision letter to emphasise their point that the decision of Mr Morris was on the facts in this case.)

“14.

Following the decision by Mr Morris the Council issued a claim for possession out of Liverpool County Court on 4^th December 2006.

15.

An application for judicial review and urgent consideration to include a stay of the county court proceedings was issued on behalf of the appellant. On 22^nd December 2006 Mr Justice Sullivan refused the appellant’s application to stay the possession proceedings and abridge the time for service. However, the Council had on 21^st December 2006 already agreed to stay the county court possession proceedings pending the outcome of the judicial review.

16.

The agreement relating to the stay of proceedings was approved by District Judge Coffey on 23^rd January 2007. ”

In his skeleton argument Mr Luba, in seeking to distinguish McLellan, suggested that it was material that the decision in this case was on the facts and indeed in most demoted tenancy cases would be likely to be on the facts and thus not suitable for review by the courts under judicial review. The skeleton drew attention to a decision of the European Court of Human Rights post dating McLellan, Tsfayo v United Kingdom [2007] EHRR 656. That case held that where a tribunal was deciding a simple question of fact, as opposed to exercising an administrative discretion pursuant to wider policy aims, Judicial Review was not an appropriate form of supervision by the courts since it could not hear appeals on fact. [See particularly paragraph 45]. He submitted the decision was inconsistent with McLellan.

Orally Mr Luba also drew our attention to other decisions of the European Court of Human Rights: Connors v United Kingdom(2005) 40 EHRR 9; and McCann v United Kingdom judgment 13^th May 2008. Connors was a case in which a gypsy’s licence was terminated on the grounds of the conduct of the family and a possession order sought from the court. The court made the possession order. The European Court held that the gypsy’s Article 8 rights had been infringed and amongst its reasons were that the procedure did not allow for the arguments as to misconduct to be dealt with by the court in that “the County Court proceedings . . . were only concerned with the fulfilment of the formal conditions for eviction”. It held that no separate issue arose so far as Article 6 was concerned. Mr Luba particularly relied on the court’s comments as to the effectiveness of judicial review where facts are in issue in paragraph 92 of the judgment of the court to which I will return [see paragraph 29 below].

In McCann the court made clear that Connors was not confined to the position of gypsies but applied (as was the position in McCann) to a joint tenant whose tenancy had been brought to an end by a notice given by his estranged wife, the co-joint tenant. It ruled that Article 6 was not engaged because the determination of civil rights took place before the domestic courts. In considering the position under Article 8, however, it reviewed certain of the English domestic cases in which the rights of tenants, and how those rights should be balanced with the rights of landlords, under Article 8 have been considered, i.e. Qazi v London Borough of Harrow [2003] UKHL 43, Sheffield City Council v Smart [2002] EWCA Civ 4 and Kay v Lambeth Borough Council, Price v Leeds County Council [2006] UKHL 10. Mr Luba relied particularly on paragraph 53 and the comments as to the appropriateness of judicial review in the circumstances of that case, a paragraph I will come back to.

Mr Luba also referred us to Runa Begum v Tower Hamlets London Borough Council [2003] UKHL 5 [2003] 2AC 430. In particular he relied on paragraph 27 where the question of the independence of a council officer is dealt with in the following terms:-

“One of the purposes of article 6, in requiring that disputes over civil rights should be decided by or subject to the control of a judicial body, is to uphold the rule of law and the separation of powers: see Golder v United Kingdom (1975) 1 EHRR 524. If an administrator is regarded as being an independent and impartial tribunal on the ground that he is enlightened, impartial and has no personal interest in the matter, it follows there need not be any possibility of judicial review of his decision. He is above the law. That is a position contrary to basic English constitutional principles. It is also something which the Strasbourg court has been unable to accept. I need refer only to the series of cases, cited in paragraph 83 of the opinions in R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295, in which it has been held that Sweden was in breach of article 6 because there was no possibility of any form of judicial review of government decisions determining civil rights. It is no disrespect to Mrs Hayes to say that she is not an independent tribunal simply because she is an administrator and cannot be described as part of the judicial branch of government.”

He then drew our attention to paragraphs 58 and 59 and the way in which the decision in McLellan is described by Lord Hoffmann as “within recognised categories of administrative decision making”. As to whether this reference helps Mr Luba I will return [see paragraph 52 below].

Before us Mr Luba also drew attention to certain minor differences between the introductory tenancy scheme and the demoted tenancy scheme, and suggested the differences lead to the demoted tenant having fewer rights. For example he pointed out that in the Introductory Tenancy scheme the best outcome for an introductory tenant was that a landlord would not issue proceedings and thus he would acquire a secure tenancy, whereas under the demoted tenancy scheme the landlord would not only have not to issue proceedings but would also have to withdraw the notice of intention to proceed otherwise the demoted tenancy would continue.

Mr Luba, it is fair to say, accepted that despite the differences there were distinct similarities between the two schemes and he accepted that the intention must have been to replicate. In my view the intention was clearly to replicate and such differences as there are would not be a ground for distinguishing McLellan.

Mr Luba criticised the judge’s finding that under the demoted tenancy scheme it was in fact open to the landlord to allow the review decision to be taken by someone independent of the council. He drew attention to the wording of section 143F(2) where it is provided that “. . . the landlord must review the decision”. He also relied on the language of the regulations: Regulation 2(2), stating that the “officer reviewing the decision must occupy a more senior position within the organisation of the landlord” and regulation 8(1), again referring to “landlord”.

Thus the main thrust of Mr Luba’s case was that under the demoted tenancy scheme decisions on fact were required to be taken by officers of the landlord on review and that was incompatible with Article 6. This was exemplified by the instant case where Mr Morris, an officer of the landlord, had made findings of fact. He pointed out how in McLellan some concern had been expressed about the appropriateness of judicial review where facts were in issue and sought support from the authorities in the European Court, cited above, as indicating that where facts were in issue judicial review was not a sufficient procedure to satisfy the Alconbury principle.

Mr Bartley Jones QC and Mr Paul Burns, for the Council, and Mr Stilitz, for the Secretary of State, put in detailed and very helpful skeleton arguments. The essence of them was to emphasise the similarities between the demoted tenancy scheme and the introductory tenancy scheme considered in McLellan. Although both would submit that McLellan was wrong insofar as it held that Article 6 was engaged, the skeletons concentrated on McLellan’s finding of no violation of Article 6 if it was engaged. The submissions were simply that, in the light of McLellan, the judge was clearly right in rejecting any suggestion of a violation of Article 6.

Orally Mr Bartley Jones responded to Mr Luba’s citation of passages from Connors and McCann, pointing out that they were Article 8 cases and that there was no attack under Article 8 either at the macro level or the micro level. He further submitted they were cases where the applicants had had no consideration of their positions at all and thus were not in point. As regards compliance with Article 6, if it was engaged, he submitted that in fact Runa Begum made the position of the Council even stronger.

Mr Stilitz for the Secretary of State supported Mr Bartley Jones and developed briefly the one point on which he and Mr Bartley Jones differed. His submission was that it was open to the council to delegate their reviewing power, as found by the judge, and thus use an independent tribunal, and that also was an answer to the argument that the sections bringing in the scheme were incompatible with Article 6.

In my view there is no distinguishing feature of the demoted tenancy scheme which would allow the reasoning in McLellan not to apply. Furthermore, the fact that Mr Morris may have decided some facts to reach the decision in this case would not of itself lead to the conclusion that the whole demoted tenant scheme is incompatible with Article 6. McLellan recognised that there may be instances where there are issues of fact but pointed out that the essence of the role of the authority in considering an introductory tenant’s position is to balance the needs of others against those of a tenant where allegation and counter-allegation may be being made. It is tempting to say simply we are bound by McLellan and that is the end of the matter.

But in fact it seems to me that one can go further in the light of the authorities since McLellan. Authorities since McLellan have considered, in the Article 6 context, the proper approach to situations in which fact finding may have been involved in the making of a decision by a housing authority carrying out a review similar to that considered in McLellan and similar to that involved in the demoted tenancy scheme. Furthermore it seems to me that McLellan and its approach to schemes such as the introductory tenant scheme and the demoted tenancy scheme has, in effect, the approval of the House of Lords and indeed indirectly the European Court of Human Rights, at least so far as any allegation might be made that Article 8 is being infringed. That is important because, as Mr Luba, who relied on aspects of such authorities recognised, there is a strong correlation between the procedural considerations which arise when considering Article 8 and the impact of Article 6. No attack is made by Mr Luba by reference to Article 8, but I have found it useful in considering Mr Luba’s reference to certain paragraphs in the authorities to consider the position by reference to Article 8 because of that correlation. It is helpful to do that before coming back to the cases dealing directly with Article 6.

It is convenient to take the Article 8 authorities, both domestic and Strasbourg, in their chronological sequence. So far as domestic authorities are concerned there are, it is right to say, Court of Appeal authorities of relevance but it is sufficient to refer simply to the relevant House of Lords authorities which themselves took account of the relevant authorities in the Court of Appeal. The starting point is Harrow London Borough Council v Qazi [2004] 1 AC 983 (Qazi). In Qazi the husband and wife were joint tenants; the wife left the husband and gave notice to quit. On expiry of the notice the husband applied for a sole tenancy but the council refused and ultimately sought an order for possession. The House of Lords accepted that the property was the husband’s home within Article 8(1) but, by a majority, held that Article 8 could not be relied on to defeat proprietary or contractual rights to possession and that domestic law gave the housing authority an unqualified right to immediate possession. Among the majority opinions Lord Hope’s understanding of European Jurisprudence led him to the conclusion that “Article 8(2) is met where the law affords an unqualified right to possession on proof that the tenancy has been terminated.” Lord Millett, as I understand it, was of the same view and Lord Scott put the matter more strongly, suggesting possibly that in such circumstances Article 8 would not be applicable at all. McLellan was considered and no-one suggested it was wrongly decided, although Lord Scott would have held it rightly decided on the view he took of Article 8, rather than on the view that Article 8 was applicable.

Also considered was Sheffield City Council v Smart (supra), concerned with a non-secure tenancy of a homeless person owed a duty under section 193 of the Housing Act 1996, served with a notice to quit on the grounds she was causing a nuisance. Lord Hope said this in relation to that case in paragraph 79:-

“. . . When it had taken effect the authority applied for a possession order. The Court of Appeal held that there was a prima facie violation of article 8(1) but, after examining of the scheme laid down by Parliament, that there had been no breach of the defendant’s article 8(1) right in that case. It was also held, following R (McLellan) v Bracknell Forest Borough Council [2002] QB 1129 that a challenge to the decision to serve a notice to quit could be made in judicial review within the appropriate time limits, and that in the rare situation where something wholly exceptional happened after service of the notice to quit which fundamentally altered the rights and wrongs of the proposed eviction the judge in the county court who was hearing the claim for possession might be obliged to address it in deciding whether the making of a possession order could be justified.”

Lord Millett also accepted that if the local authority was acting “unfairly or from improper or ulterior motives” the tenant could apply for judicial review and relied on the availability of that remedy as being sufficient to “supply the necessary and appropriate degree of respect for the applicant’s home” [see paragraph 109].

There then followed two decisions of the European Court but it is only necessary for me to refer to Connors (supra). The applicant and his family were gypsies who had lived on the site for some years. The council alleged facts amounting to a breach of the licence which the applicant contested. The council obtained an order from the County Court and evicted the family in distressing circumstances. Relying on Article 8 the applicant complained that he was not given the opportunity to challenge in court the allegations. He also invoked Article 6. The court was referred to Smart amongst other domestic authorities.

In paragraph 85 the court commented that the County Court was simply concerned with whether the formal conditions for the eviction had been satisfied and the respective merits of the arguments over breaches were not examined. The court then considered the possibility of the availability of judicial review at a paragraph 92 and said:-

“The Court would recall that the applicant sought permission to apply for judicial review and that permission was refused. In the applicant’s case, his principal objection was based not on any lack of compliance by the Council with its duties or on any failure to act lawfully but on the fact that he and the members of the family living with him on the plot were not responsible for any nuisance and could not be held responsible for the nuisance caused by others who visited the site. Whether or not he would have succeeded in that argument, a factual dispute clearly existed between the parties. Nonetheless, the local authority was not required to establish any substantive justification for evicting him and on this point judicial review could not provide any opportunity for an examination of the facts in dispute between the parties. Indeed, the Government drew the Court’s attention to the Court of Appeal’s decision in Smart, where it was held that to entitle persons housed under homelessness provisions, without security of tenure, to have a court decide on the facts of their cases as to the proportionality of their evictions would convert their occupation into a form of secure tenure and in effect undermine the statutory scheme (paragraph 54 above). While therefore the existence of judicial review may provide a valuable safeguard against abuse or oppressive conduct by local authorities in some areas, the Court does not consider that it can be regarded as assisting the applicant, or other gypsies, in circumstances where the local authority terminates licences in accordance with the applicable law.”

In a case where there had been no consideration of the facts and the court under domestic law was bound to evict whatever the position, the court accordingly found that there had been a violation of Article 8. As regards Article 6, the court found that the essence of the complaint had been “absorbed” by Article 8 and that no separate issue arose, thus demonstrating the strong correlation between the procedural considerations that arise under Article 8(2) and Article 6.

There followed cases in the Court of Appeal which considered that Connors might cast doubt on the majority view in Qazi. That led to a seven-judge committee sitting in Kay v Lambeth London Borough Council [2006] 2 AC 465 to reconsider the majority decision in Qazi. The House of Lords had to consider two different appeals. First, in the Lambeth appeal, it had to consider a situation in which as a matter of domestic law the appellants’ right to occupy certain premises had come to an end, and where the judge and the Court of Appeal had following Qazi struck out a defence based on Article 8. In the second appeal Leeds Council had claimed possession as freehold owner against the appellants who were gypsies and who did not challenge the Council’s title or claim any leave or licence to enter or occupy the land. The judge granted an order for possession holding himself bound by Qazi. The Court of Appeal, holding they were equally bound, dismissed the appeal but granted leave to appeal to the House of Lords considering that decision to be incompatible with Connors.

Ultimately the majority decision of their Lordships, sufficient for my purpose, can, I think, be understood by quoting paragraph 110 of Lord Hope’s speech with which each of the others in the majority expressly agreed [see Lord Scott 174, Baroness Hale 192, and Lord Brown 212] :-

“110.

But, in agreement with Lord Scott, Baroness Hale and Lord Brown, I would go further. Subject to what I say below, 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.”

It is clear that the House had its attention drawn to the various statutory schemes including “introductory tenancies” and “demoted tenancies” [see in particular Lord Bingham’s speech at paragraph 33]. Lord Bingham, who was in the minority (i.e. would have allowed Article 8(2) points to be taken), makes these observations in paragraph 35 and 36:-

“35.

Under some statutory regimes the court may be required to make an order for possession if certain prescribed conditions are met and there is no overriding requirement that the court considers it reasonable or just to make such an order. The statutory scheme is nonetheless likely to satisfy the article 8(2) requirement of proportionality if it is clear that the statutory scheme represents a democratic solution to the problems inherent in housing allocation. Thus in Poplar Housing and Regeneration Community Association Limited v Donoghue [2001] EWCA Civ 595, [2002] QB 48, the Court of Appeal found no breach of article 8(2) in the use of section 21(4) of the Housing Act 1988, as amended, to gain possession of an assured shorthold tenancy granted to a person who had been intentionally homeless, because (para 69) Parliament had intended to give preference to the needs of those dependent on social housing as a whole over those who, like the tenant, had been intentionally homeless. Similarly, in R (McLellan) v Bracknell Forest Borough Council [2001] EWCA Civ 1510, [2002] QB 1129, the Court of Appeal found no breach of article 8 where a housing authority determined the introductory tenancies of tenants whose rent was in arrears under section 127(2) of the Housing Act 1996, since (para 63) Parliament had decided that it was necessary in the interest of tenants generally and the local authorities to have a scheme whereby, during the first twelve months, tenants were on probation and could be evicted without long battles in the county court, there being (it was held) adequate procedural safeguards. The Court of Appeal took a similar approach when holding, in Sheffield City Council v Smart [2002] EWCA Civ 4, [2002] HLR 639, para 37, that Parliament clearly enacted the relevant statutory provisions upon the premise that while a tenant is housed as a homeless person he enjoys no security of tenure. See also Wandsworth London Borough Council v Michalak [2002] EWCA Civ 271, [2003] 1 WLR 617, paras 63, 78. Where a statutory scheme covers the case of an occupier, and conditions are prescribed for obtaining possession, and those conditions are met, it will only be in highly exceptional circumstances that the occupier will gain additional protection from article 8.

36.

There are of course some cases (of which the present cases are examples) in which the relationship between public authority owner or landlord and individual tenant or occupier is not governed by any statutory scheme. But possession may be sought on expiry of the period for which the right to occupy was granted, or because the notice required by domestic property law to bring that term to an end has been given, or because one or more of the conditions on which the right to occupy was granted has been broken. It cannot be said that the relationship between the parties in such cases is the subject of a balance struck by Parliament, but it is not unrealistic to regard the general law as striking such a balance. The public authority owner or landlord has, broadly speaking, a right to manage and control its property within bounds set by statute. The occupier acquires a right, but only a limited right, to occupy. On due determination of that interest, a claim for possession must ordinarily succeed, since any indulgence to the occupier necessarily derogates from the property right of the public authority, whose rights are also entitled to respect. It is not therefore surprising that in P v United Kingdom (Application No 14751/89), 12 December 1990, and Ure v United Kingdom (Application No 28027/95), unreported, 27 November 1996, the occupiers' complaints were held to be inadmissible because the public authority's interference or assumed interference was held to be clearly justified. It would, again, require highly exceptional circumstances before article 8 would avail the occupiers. The peculiar facts and circumstances of Connors could fairly be regarded as crossing that high threshold, given the positive obligation to which reference is made in paragraph 24 above.”

I would understand none of their Lordships to be casting any doubt whatever on the correctness of McLellan, at least insofar as it held that the introductory tenancy scheme with its procedures for review, plus an ability to apply for judicial review, was Article 8 compliant. Lord Brown amongst the majority said this at paragraph 203:-

“Of course, where the domestic law requires the court to make a judgment (most notably perhaps in those cases under Schedule 2 to the Housing Act 1985 where repossession can only be ordered if the court considers it reasonable), or to exercise a discretion, the judge will bear in mind that he is performing this task in the context of the defendant's article 8 right to respect for his home. But where under domestic law the owner's right to possession is plainly made out (whether at common law or, for example, under the legislation providing for assured short-hold tenancies or introductory tenancies), the judge in my opinion has no option but to assume that our domestic law properly strikes the necessary balances between competing interests (as envisaged in paras 32 and 33 of my noble and learned friend Lord Bingham's judgment) and that in applying it properly he is accordingly discharging his duty under section 6 of the Human Rights Act 1998. Where section 89 of the Housing Act 1980 applies, the judge will to that extent have a discretion to postpone possession. That apart, however, he has no discretion and the order must be made, leading to the eventual execution of the warrant for possession. Where no statutory protection is afforded to occupiers that should be assumed to be Parliament's will: sometimes that will be clearly evident from the terms of the governing legislation (as in the cases considered by Lord Bingham in para 35); even, however, where the owner's rights arise at common law, the absence of statutory protection must surely be, as my noble and learned friend Lord Hope suggests, the result of a deliberate decision by Parliament to leave the owner's right to recover possession in these cases unqualified. As Lord Bingham observes at para 36, it is not unrealistic to regard the general law as striking the required balance.”

There can, as I see it, therefore be no doubt that as a matter of domestic law the scheme considered in McLellan to be Article 8 compliant has in effect received the approval of the House of Lords. One reason for that is the procedure available, including the right of review and the right to apply for judicial review. Indeed, I would respectfully suggest that the House of Lords would not have contemplated that there still remained any possibility of a defendant in the County Court being entitled to raise as a “seriously arguable point” that a scheme such as that considered in McLellan was not compatible with Article 8 so as to obtain the adjournment contemplated in paragraph 110 of Lord Hope’s judgment quoted above.

After Kay comes the European Court’s decision in McCann. The McCanns were joint tenants of a family house owned by the Birmingham City Council and were secure tenants under the 1985 Act. In summary Mrs McCann was persuaded to “close the tenancy by signing a notice to quit”. She was not advised of the consequences. Mr McCann was given notice to vacate and the authority’s Allocations Review panel decided, in accordance with their domestic violence policy and because Mr McCann had no dependants living with him, not to allow him to accede to the tenancy of the house. The authority sought an order for possession and Mr McCann raised before the County Court Article 8. The judge held that under the common law and Housing Acts the authority would have been entitled to possession but held the circumstances were exceptional and upheld Mr McCann’s Article 8(2) defence.

Following Qazi the Court of Appeal allowed the authority’s appeal and granted an order for possession. Only then did Mr McCann seek judicial review of the authority’s decision to procure a notice to quit from Mrs McCann. That application was refused. Permission to appeal was also refused and Mr McCann was evicted.

The European Court of Human Rights in its judgment drew attention to the relevant common law under which once a tenancy has been validly brought to an end, a former tenant becomes a trespasser. It drew attention to what would have been the position if the joint tenancy had remained in being and the tenants’ position as secure tenants and in particular section 84(2) under which a court will not make an order for possession “unless it considers it reasonable to make an order”. It drew attention to the authority’s policy where there was domestic violence.

It then considered Qazi and first the passages in the majority judgments dealing with the possibility that in exceptional cases a tenant might move for judicial review. The judgment then refers to the judgments of the minority and in particular the citation of a passage in the judgment of the Court of Appeal in Smart. The judgment approves the approach of Lord Bingham (in the minority in Qazi) in these words:-

“Lord Bingham nonetheless emphasised that the administration of public housing under various statutory schemes was properly entrusted to local housing authorities and that the occasions on which a court would be justified in declining a possession order would be highly exceptional He concluded:-

“If (contrary to the ruling of the majority of the House) effect were to be given to my opinion, I am confident that the housing authorities acting in good faith in implementation of schemes prescribed by statute and administered by them need apprehend no significant increase in their litigious burden.”

The judgment then cited Kay and referred first to the majority view that Connors was not incompatible with Qazi. It saw the majority as deciding in summary that where the law itself provided the answer, since a merits review was a pointless exercise, an Article 8(2) defence would be struck out, save that it was accepted that a person “might have a defence” under Article 8(2) in “exceptional cases, namely (1) where he challenged the domestic law as itself being incompatible with Article 8 (as in Connors ) or (2) he challenged the action of the public authority landlord on public law grounds. It then also referred to the minority view and to their opinion that an Article 8(2) defence should be allowed to be raised and that it was likely only to occur in exceptional cases.

The court in its assessment then agreed with the domestic court’s analysis that the property was the applicant’s “home”. It also considered that the interference was in accordance with the law and pursued a legitimate aim. It accepted that “the interference also pursued the aim of ensuring that the statutory scheme for housing provision was properly applied”. It said that the “others” in such a case are “the intended beneficiaries of the complex arrangements set up by, amongst others, the Housing Acts.” It identified the central question as to “whether the interference was proportionate to the aim pursued and thus necessary in a democratic society”. Then following a lengthy citation from Connors the court stated first that the reasoning in Connors was not confined to gypsies and said:-

“50 . . . The loss of one's home is a most extreme form of interference with the right to respect for the home. Any person at risk of an interference of this magnitude should in principle be able to have the proportionality of the measure determined by an independent tribunal in the light of the relevant principles under Article 8 of the Convention, notwithstanding that, under domestic law, his right of occupation has come to an end.”

The court noted that the legislature in the United Kingdom had set up “through the Housing Acts inter alia, a complex system for the allocation of public housing, about which the applicant does not complain”. That system includes, in section 84 “ . . .provisions to protect secure tenants”. The court then held that the authority in McCann “chose to bypass the statutory scheme by requesting Mrs McCann to sign a common law notice to quit”; that “it does not appear that the authority, in the course of this procedure, gave any consideration to the applicant’s right to respect for his home”; that “under domestic law . . . it was not open to the county court to consider any issue concerning the proportionality of the possession order “ save in exceptional circumstances which did not exist here and finally that the application for judicial review failed. The court then said this:-

“53.

As in Connors, the “procedural safeguards” required by Article 8 for the assessment of the proportionality of the interference were not met by the possibility for the applicant to apply for judicial review and to obtain a scrutiny by the courts of the lawfulness and reasonableness of the local authority's decisions. Judicial review procedure is not well-adapted for the resolution of sensitive factual questions which are better left to the County Court responsible for ordering possession. In the present case, the judicial review proceedings, like the possession proceedings, did not provide any opportunity for an independent tribunal to examine whether the applicant's loss of his home was proportionate under Article 8 § 2 to the legitimate aims pursued.

54.

The court does not accept that the grant of the right to the occupier to raise an issue under Article 8 would have serious consequences for the functioning of the system or for the domestic law of landlord and tenant. As the minority of the House of Lords in Kay observed (see paragraph 28 above), it would be only in very exceptional cases that an applicant would succeed in raising an arguable case which would require a court to examine the issue; in the great majority of cases, an order for possession could continue to be made in summary proceedings.”

It seems to me that the European Court was aware of schemes such as those considered in McLellan, referring as it did to the United Kingdom’s complex system, and the tone of the judgment is not unsympathetic to the social problems that public housing authorities have. There is nothing to indicate that the European Court disapproved as violating Article 8 (or indeed Article 6) any of the schemes which make up what the court describes as “a complex system for the allocation of public housing.” What the court was concerned about was a case in which in their view the authority had by-passed the secure tenancy system, in which there had been no opportunity for the tenant to put his point of view, and in which (in the court’s view) the authority had given no consideration to the tenant’s right to respect for his home.

The correlation between the procedures required for compliance with Article 8(2) and the requirements of Article 6 are again demonstrated by McCann [see for example the reference to an independent Tribunal in paragraph 50 and the fact that the Article 6 complaint was dismissed]. It is that correlation which led Mr Luba to rely on paragraphs in the judgments on Article 8. But it is also that fact which has led me at some length to examine the Article 8 authorities since it seems to me that it must be unlikely that a scheme which is held to have the requisite procedural aspects so as to comply with the requirements of Article 8(2) will still be held to violate Article 6.

But I must address directly the Article 6 question, which will focus attention on the fact (which must be accepted) that Mr Morris and any other senior officer in the authority’s organisation would not be an independent Tribunal in the Article 6 sense and raises the questions (1) whether Article 6 is engaged at all in relation to that person’s decision; and (2) if so, whether the lack of independence is cured by virtue of the fact that judicial review would be available or (3) could be cured by the authority delegating the review procedure to an officer outside the particular authority.

I will deal with the third point first. The judge thought that there was nothing to compel the authority to use one of its own officers [see paragraph 38 of the judgment]. He appreciated that it might not be satisfactory to use an outsider. In my view the relevant regulations quoted above contemplate another officer in the organisation and contemplate indeed that the officer “must occupy a more senior position within the organisation of the landlord” (my emphasis) [see regulation 2(2) quoted above]. Furthermore, even if strictly section 101 of the Local Government Act 1972 would allow another authority to carry out the review function as Mr Stilitz in his argument suggested, the possibility that they would do so seems unreal. Mr Bartley Jones for the Council does not support the argument because, obviously, Councils in considering the balance between a demoted tenant and others want their own officers who know the position to be carrying out that exercise. The good sense of non-delegation is further supported by Lord Hoffmann in Runa Begum. In paragraph 46 he said this:-

“It therefore seems to me that it would be inappropriate to require that findings of fact for the purposes of administering the homelessness scheme in Part VII should be made by a person or body independent of the authority which has been entrusted with its administration. I certainly see nothing to recommend the recourse to contracting out which was suggested by the majority in the Adan’s case. Some of the arguments against it are well made by Hale LJ, at p 2144, paras 77-78. Four points seem to me important. First, if contracting out is not adopted across the board, it would be bound to generate disputes about whether the factual questions which had to be decided by the housing officer were sufficiently material to require contracting out. Secondly, if it were adopted in every case, it would add significantly to the cost and delay. Thirdly, it would mean that the housing officer, instead of being able to exercise his discretionary powers, such as whether he considered accommodation suitable for the applicant, on a first-hand assessment of the situation, would be bound by a written report from the independent fact finder. Fourthly, I am by no means confident that Strasbourg would regard a contracted fact finder, whose services could be dispensed with, as more independent than an established local government employee. In Adan’s case, at pp 2134-2135, para 44, Brooke LJ declined to become involved in “the practical difficulties that may arise when trying to ensure that the third party has the requisite independence” but they are worth thinking about.”

It would not be right thus to approach the scheme on the basis that councils may delegate the function of review.

Turning next to the question whether Article 6 is engaged at all, I do not think it would be fruitful to enter into debate in this judgment as to whether Article 6 is engaged. I took the view I did in McLellan and the other members of the court agreed. I am not actually persuaded that we were wrong, when one takes account of the whole process of decision by the council by which, effectively, the court is bound to determine that the tenancy should end. What is important is that, whereas in McLellan a broad view is taken as to the applicability of Article 6, it is necessary, as Lord Bingham and Lord Hoffmann have emphasised in Runa Begun, to have a flexible attitude to Article 6.

Finally I turn to the question whether some degree of fact finding by the reviewing officer such as Mr Morris prevents the appeal on law by judicial review being adequate to fulfil the requirement of there being a determination by an independent and impartial tribunal.

It has to be remembered that in the demoted tenancy scheme the tenant has already had a court hearing to decide whether he or she should lose the status of secure tenant. Tenants are, in effect, on probation. Although in this case Mr Morris appears to have found facts, under the scheme there is no requirement to establish facts. In the guidance set out at paragraph 67 of the Fact Sheet On Demotion Orders issued by the Office of the Deputy Prime Minister in October 2004, the position is described aptly in this way:-

“…it is important to note that the landlord’s reasons for moving to possession are not restricted to further occurrences of anti-social behaviour or other illegal activity. A key aim of the demotion is to give discretion to the landlord and may include other matters relating to the conduct of the tenancy e.g. rent arrears. By the time they get to being evicted from a demoted tenancy, the tenant has had their day in court and they are on their last chance.”

In any event if there is fact finding, that involves, as Lord Bingham put it, simply “staging posts on the way to much broader judgments” [see paragraph 9(2) of Runa Begum.

Lord Hoffmann dealt with the impact of fact finding from paragraphs 47 to 59 all of which are relevant but I would simply quote from his concluding paragraph 59 which is sufficient for disposal of this point on this appeal:

“. . . . In my opinion the question is whether, consistently with the rule of law and constitutional propriety, the relevant decision-making powers may be entrusted to administrators. If so, it does not matter that there are many or few occasions on which they need to make findings of fact. The schemes for the provision of accommodation under Part III of the National Assistance Act 1948, considered in Beeson's case; for introductory tenancies under Part V of the Housing Act 1996, considered in R (McLellan) v Bracknell Forest Borough Council [2002] 2 WLR 1448; and for granting planning permission, considered in R (Adlard) v Secretary of State for the Environment, Transport and the Regions [2002] 1 WLR 2515 all fall within recognised categories of administrative decision making. Finally, I entirely endorse what Laws LJ said in Beeson's case, at paras 21-23, about the courts being slow to conclude that Parliament has produced an administrative scheme which does not comply with constitutional principles.”

His citation of McLellan as being “within recognised categories of administrative decision making” far from allowing Mr Luba to distinguish McLellan and the introductory tenant scheme from the demoted tenant scheme, concludes the matter against him since there can be no material distinction between the two schemes for this purpose.

I would dismiss the appeal.

I agree.

I also agree.

A comparison of the review procedures relating to introductory tenancies and demoted tenancies