Erskine, R (on the application of) v Lambeth & Anor

MR JUSTICE MITTING: On 3rd August 1998 London Borough of Lambeth granted a secure tenancy of a 2 bedroom maisonette on the upper two floors of 137 Fenwick Place, SW9, to the claimant. The kitchen was equipped with a sink, fixed storage cupboards and working surfaces, a gas cooker and hob, a washing machine and a fridge-freezer.

The flat was and is home for the claimant and her two children now aged 5 and 1. It was inspected by Denise Williams, a member of the Chartered Institute of Environmental Health on 26th October 2002. She concluded that the current layout of the kitchen was unsafe and rendered the flat unfit for human habitation. She expanded upon her reasons in a letter of 28th March 2003.

Her conclusions were based on the positioning of the electrical sockets in relation to the fixed worktops. On the wall against which the gas cooker now stands there is a single 3 pin socket, part of a cooker point for an electric cooker no longer installed. Two fixed worktops run at 90 degree angles to each other, on either side of the cooker, one of them to a sink. On the opposite wall, out of safe reach of the worktops, is a double socket. The claimant runs an electric kettle, a toaster, a television, and when in use, a washing machine, from a gang socket hanging freely from a single plug inserted into the cooker point socket. The double socket is unused.

Miss Williams condemns the set up as, "extremely dangerous" especially in a flat occupied by two young children, for the obvious reason that one or more of the electrical appliances may become dislodged if the flex is caught by the claimant or by one of her children, and if so, may cause scalding or other injuries.

The claimant complained about the matter to Lambeth Borough Council in the midst of possession proceedings brought against her for alleged non payment of rent in Lambeth County Court. The Borough Council's surveyor reported on 25th November 2002 that the provision of extra sockets would be an improvement and not a repair. The claimant accepts that, as far as it goes, that is correct. The sockets and worktop are in the position in which they were at the commencement of her tenancy. Any alteration in the position of them would therefore be an improvement rather than a repair.

Though Miss Williams does not say so expressly it is implicit from her report that she considers that the kitchen fails to satisfy the statutory test of fitness for habitation on ground (f) in section 604(1) of the Housing Act 1985 which provides:

In the claimant's preaction protocol letter of 27th November 2002 the claimant requested Lambeth Borough Council to provide and fit a double electric socket above the fixed worktop beside the cooker, and a fixed socket for use with the fridge-freezer, at present powered by a flex plugged into a socket in the living room just outside the kitchen.

Lambeth Borough Council took no decision until after the filing of the claim for judicial review. Mr Rance, the team leader for Estate Management in North Clapham, wrote to the claimant's solicitors on 18th March 2003 stating that in his view the flat was not unfit, on ground (f), because there were adequate facilities for the preparation and cooking of food. In his view the claimant's real complaint was that there were an inadequate number of electric sockets and the danger, which he implicitly acknowledged, arose from the means used by her to overcome that inadequacy. He withdrew an offer previously made by the Borough Solicitor to move the sockets if the claimant abandoned her claim for judicial review.

The following is common ground: first, Lambeth Borough Council is not obliged at common law or by virtue of statutory covenants to move the sockets or provide extra sockets. As to the common law there is no obligation because the flat was let unfurnished and in any event there is no continuing obligation to keep it in repair throughout the tenancy. As to section 11 of the Landlord and Tenant Act 1985, the sockets are in repair and working order themselves. As to contractual covenants, they follow section 11 and impose no additional obligation.

Secondly, if Lambeth Borough Council were satisfied that the flat was unfit for human habitation on ground (f) it could serve a notice under section 189(1) of the Housing Act 1985 on any person, other than itself, having control of the premises. Such a notice could require prompt repair. It could also serve a deferred action notice under section 81 of the Housing Grants, Construction and Regeneration Act 1996. It could, alternatively, make closing or demolition orders, or declare the whole area a clearance area under other provisions of the 1985 Housing Act. It could not, however, serve a notice under section 189 on itself. That limitation stems from a decision of the Court of Appeal in the R vCardiff County Council ex parte Cross [1982] 6 H.L.R. 1, that as a matter of construction a local housing authority could not serve a section 189 notice on itself.

Thirdly, Lambeth Borough Council has the power, under section 9(2) of the Housing Act 1985, to improve the flat by repositioning the sockets or installing additional sockets.

The principal live issue in the case is whether or not the claimant's rights, under the European Convention on Human Rights Articles 8 and 14 taken together, have been infringed in the circumstances which I have described.

Section 189(1) of the 1985 Act provides, relevantly, that:

The claimant contends that her Convention rights have been infringed because Part VI of the Housing Act 1985, and in particular section 189, enact a different enforcement regime for tenants of a local housing authority from that which applies to tenants of other landlords, in particular private landlords and housing associations. A tenant of the latter can invite the local housing authority to consider whether to serve a notice under section 189. A tenant of the local housing authority cannot. She found herself on Articles 8 and 14 taken together. They provide:

The rights said to be engaged are the right to private and family life and to home, and in particular the enjoyment of those rights without discrimination on the ground of status as a tenant of the local housing authority. Strasbourg jurisprudence establishes that Article 8, read with Article 14, imposes on a state both positive and negative obligations: first, not to interfere with the exercise of the right to private and family life and home, subject to the exceptions stated in Article 8.2; secondly, to take steps, for example, putting in place a suitable legal framework, to secure those rights (see for example Lopez Ostrav Spain 20 E.H.R.R. 277, paragraph 51); thirdly, to do so without discrimination on the grounds stated in Article 14.

The case law also establishes that though Article 14 has no independent existence its application does not presuppose a breach of the substantive guarantees afforded by the Convention. This was first explained in the BelgianLinguistics Case (No.2) [1968] 1 E.H.R.R 252, paragraph 9:

The court went on to give two examples of its reasoning:

The concept was succinctly stated in Rasmussen v Denmark [1984] 7 E.H.R.R. 371, paragraph 29:

That proposition was applied in relation to Article 8 in terms in Abdulaziz v United Kingdom [1985] 7 E.H.R.R. 471, by paragraph 71. Under UK immigration rules wives could join husbands but not vice versa. The right to respect for family life was held not to have been infringed because each applicant could establish family life outside the United Kingdom, but the court unsurprisingly found that Article 8 was applicable because the case concerned the right of married or betrothed couples to cohabit in marriage. A right more fundamental to family life would be hard to envisage. Therefore Article 14 applied and required discrimination between spouses and different sexes to be justified objectively.

Where a state takes measures, including legislation, to promote a Convention right the measures and legislation will be "within the ambit" of the relevant Convention right in the circumstances identified by the court in Petrovic v Austria [2001] 33 E.H.R.R. 14 at paragraph 26 to 29:

The Court of Appeal in Ghaidan v Godin-Mendoza [2003] 2 W.L.R. 478, at paragraph 9, on page 484, letter B, as part of its decision applied the Petrovic test. It also cited, with apparent approval, observations of the authors of Grosz, Beatson & Duffy on the ambit of Article 14:

This observation did not form part of the ratio decidendi of the case, and does not, as a matter of precedent, bind me, for reasons which I will explain hereafter. In my view it overstates the effect of Strasbourg case law, which is as stated in Rasmussen, Abdulaziz and Petrovic.

Article 8 contains no definition of private or family life. In Botta v Italy [1998] 26 E.H.R.R. 241, paragraph 32, the court observed that the guarantee of respect for private life is primarily intended to ensure the development without outside interference of the personality of each individual in his relations with other human beings.

In considering respect for family life the court has so far been concerned only with such obvious incidents of family life as the right of spouses to cohabit (see Abdulaziz), of children, whether born in or out of wedlock, to develop ties with their parents (see Marckx v Belgium [1979] 2 E.H.R.R. 330), of parents with their children after divorce (Hendricksv Netherlands [1983] 5 E.H.R.R. 233), and of legal protection for the victims of domestic violence (see Airey v Ireland [1979] E.H.R.R. 330). The right to respect for home includes the right not to be deprived of a home on grounds that discriminate between groups of different status without objective justification (see Larkos v Cyprus [1999] 30 E.H.R.R. 597), and not to have one's enjoyment of a home interfered with by externally generated pollution over a prolonged period in such a way as to affect private and family life (see Lopez Ostra v Spain [1994] 20 E.H.R.R. 277).

The rights to private and family life and home are intermingled and overlapping. Interference with one will often co-exist with or lead to interference with another. There are, however, limits on the rights. The court has specifically excluded from the ambit of Article 8 the right to be provided with a home (see Chapman v United Kingdom [2001] 33 E.H.R.R. 399, at paragraph 99). The second section of the court has observed that Article 8, "does not guarantee the right to have one's housing problem solved by the authorities". (Marzari v Italy [1999] 28 E.H.R.R. CD 175, 179). These observations were cited as accurate statements of the law by Lord Bingham in Harrow London Borough Council vQazi [2003] UKHL 43 at paragraph 6. The essence of the rights guaranteed by Article 8 were explained by Lord Hope in the same case at paragraphs 50 and 53:

Domestic case law also establishes that Article 8 is not always inapplicable in housing cases. Where the condition of the premises owned or managed by a public body is such that a tenant's right to respect for his private and family life is significantly interfered with the affected tenant and his family may have a direct remedy under section 6 of the Human Rights Act 1988 against the public body. In Lee v Leeds CityCouncil [2002] 1 W.L.R. 1488, at paragraph 48 Chadwick LJ giving the judgment of the court said:

In R on the application of Bernard v Enfield LondonBorough Council [2002] EWHC 2282, this court held that the provision by a local authority, under a statutory duty, of a home for a family, one of whose members was in need of care and attention, which was so grossly unsuitable as to deprive her of any privacy and of effective participation in her family's life, amounted to a breach of her Article 8 rights, and also to a breach of the Article 8 rights of her husband.

However, the domestic authorities establish that before any finding that a claimant's Article 8 rights had been directly infringed it is necessary, first of all, to find the facts. (See paragraph 51 of Chadwick LJ's judgment in Lee).

I therefore turn to the facts: I unhesitatingly find that the condition of the kitchen is not such as directly to infringe the claimant's Article 8 rights. There are adequate facilities for the preparation and cooking of food, including boiling water and making toast, on the hob and under the grill of the cooker respectively. The unsafe arrangements currently in place are the result of the steps taken by the claimant. Minor expenditure on trunking and the fixing of a double socket on the surface of the wall above the worktop would eliminate, in the short and medium term, the risk to her and to her children of the accidental dislodging of electrical appliances from the worktop.

Given that there is no direct infringement of her Article 8 rights by the local housing authority, does Article 14 assist her? Logically the starting point should be a finding as to whether or not the flat failed the statutory fitness test under section 604(1)(f) of the 1985 Act. I have been urged on all sides not to make such a finding. With some reluctance I agree not to do so and will therefore address the matter as one of principle. If the flat is not unfit under section 604(1)(f) no question of discrimination can arise. Discrimination can only arise in circumstances in which the flat is in such a condition as not to infringe the claimant's Article 8 rights directly, for then she would have a direct claim against the local housing authority, but is unfit under section 604(1)(f). By definition her Article 8 rights would, on that premise, not have been directly infringed, as was the case in Bernard.

Nevertheless, the claimant argues that section 189 falls within the ambit of Article 8, so that any difference in the enforcement regime which impacts adversely on her must be objectively justified under Article 8.2. If not, she contends that her Convention rights under Articles 8 and 14 taken together have been infringed. This argument depends on what is meant by "within the ambit of" a Convention right.

Mr Knafler, for the claimant, disclaims the exceptionally loose test referred to in Ghaidan v Godin-Mendoza, "Any connection however tenuous..." but submits that, "a real and practical connection" with the Convention rights suffices. It is not, he submits, necessary, in the case of state measures or legislation, that they should be taken or enacted for the purpose of promoting a Convention right or even an object within the ambit of the Convention right. It is enough, he says, that they do in fact do so, even by a side effect.

Mr Hutchings, for Lambeth Borough Council, and Mr Karas for the Office of the Deputy Prime Minister, submit that in the case of legislation it is necessary to look at both the purpose and the effect of the legislation. They concede that it does not have to be enacted for the purpose of promoting a Convention right as such, otherwise no legislation enacted before 1950 could fall "within the ambit." But it must have, as its purpose, the furthering of a right which is in fact guaranteed by the Convention. Petrovic, they submit, provides a modern and reliable statement of what is required to engage Article 14.

I accept their joint submission in preference to that of Mr Knafler. To hold otherwise would require any legislation which had a real and practical connection with a Convention right to be subjected to an Article 14 audit by the courts, with potentially far reaching and, in a parliamentary democracy, arguably undesirable consequences.

I therefore turn to the purpose, as well as to the effect, of the Housing Act 1985, Part VI and section 189. Its origin is the Artisans and Labourers Dwellings Act 1868, whose long title states:

Section 5 provided for a report by an Officer of Health, if any premises to which the Act applied were in a condition or state dangerous to health so as to be unfit for human habitation.

Section 6 required the local authority to refer that report to a surveyor or engineer for him to consider:

Section 7 provided for the reports to be given to the owner, for him to have the opportunity of making objections and:

Section 8 required the local authorities clerk to give notice to the owner of the premises informing him that a plan, and specification, and estimate, had been prepared. After due consultation with the owner the plan, specification, and estimate, whether or not amended, were to be the plan, specification and estimate according to which the works shall be executed.]

The requirement for the condition of working class dwellings to be injurious to health was deleted either by or by the time of enactment of the Housing Act 1925 which in section 3 provided:

Thereafter that provision was refined, expanded, and in repeated Housing Acts consolidated with other provisions. Those provisions are now to be found in Part VI of the 1985 Act. The local authorities powers under Part VI, including the serving of a repair notice under section 189, can be exercised against, "the person having control of the dwelling-house..."

Section 207 (1) identifies that person as the landlord. If the dwelling house is let at a rack-rent, that is to say two thirds or more of the market rent; otherwise, if the premises are let, the tenant; if not tenanted, an owner occupier; and if not occupied, the owner.

Some of the measures open to a local authority, demolition and clearance, will result in the deprivation of an individual of his home. It is plain that the principal purpose of the legislation, as originally enacted, and as re-enacted over the years, was to protect and promote public health, and to improve the condition of low cost housing stock. It was not the protection or promotion of the rights, such as those to be found in Article 8, of individuals. As such, therefore, section 189 and Part VI are not "within the ambit" of Article 8 as explained in Petrovic.

The differences in the enforcement regime, applicable to different categories of tenant, therefore do not fall within the anti-discrimination provisions of Article 14, and I declare that Parts VI and section 189(1) are not incompatible with the Convention.

One final issue remains to be determined. Lambeth Borough Council are invited to consider exercising its power to improve the flat under section 9 of the Housing Act 1985. They were first invited to do so by the claim form in these proceedings. No decision specifically upon that point has yet been made. The issue appears, unsurprisingly, to have been lost sight of amongst the many issues canvassed in these proceedings.

If and when Mr Rance, or a colleague of his, does make a decision upon that issue he should, in my view, inspect the premises and consider whether or not the arrangements for electrical supply to ordinary kitchen implements, such as kettles and toasters, are unique to this flat, or are common to many or all of the flats in the block. If unique to this flat he should consider whether or not it is desirable to put matters right by either a permanent alteration of the electrical installation to provide sockets above the worktop, or the more temporary measure identified by him in his decision letter: that of fixing trunking to the wall and a socket standing proud of it. In making that decision he will want to have in mind the question whether or not it is desirable that the work should be done by, or on behalf of, the local housing authority who are responsible for keeping in repair the electrical installations in the flat, or by an electrician instructed by the claimant, or, unthinkably, by her or a relative of hers unskilled in electrical installation.

I do not intend to prejudge the assessment that he will make. I cannot take into account all of the factors relevant to this flat which may be revealed on inspection, or to this block of flats which will be known to the local authority, because I have no adequate information about them. But I hope that whatever else emerges from these proceedings that sensible and safe arrangements are ultimately made for the supply of electricity within the claimant's kitchen.

I think that deals with all of the issues that, at any rate according to my view of the law, I have had to deal with. I have not canvassed the issues which you dealt with in your skeletons, but not in argument, for obvious reasons.

MR KNAFLER: Yes, of course.

MR JUSTICE MITTING: Are there any applications?

MR KNAFLER: Well, I do not know if my learned friends have any applications, but I do have an application, perhaps unsurprisingly. Your Lordship has forced the issue in a trenchant and illuminating manner, if I may say so. There are two issues in relation to appeal; arguability and importance.

In relation to arguability, your Lordship's judgment, with one exception, is not a judgment on facts. It is essentially a judgment on construction and on law, and it is a judgment on a matter which is a matter of intense legal debate, and increasingly intense legal debate, namely: what is the scope of Article 14? How far does it go? In that connection, in my respectful submission, it is quite foreseeable that another tribunal will take a different view, as can happen on questions such as this, no matter how clearly one tribunal takes a particular view.

In relation to that, just very, very briefly, because your Lordship has heard many of the legal arguments, but just to flag up one point. Your Lordship's judgment goes flat against the leading text book in this field, practitioners' textbook, Clayton, and your Lordship may well be right that the Court of Appeal's endorsement of that textbook in Ghaidan does not form part of the ratio of the case. But, nonetheless, the Court of Appeal did, apparently, as your Lordship, I think, accepts, approve that statement in terms. Therefore, in my respectful submission, there is a good deal to be said on arguability.

Quite separately from arguability, of course, is the issue of importance, which can, by itself, justify the grant of permission irrespective of arguability. On importance -- this issue is important for two reasons. Firstly, there is the general question of principle: how far does Article 14 go? And although that is a question of principle it falls to be considered, no doubt in a number of different contexts, convention law being, on the whole, fact specific and case sensitive.

Quite apart from that there is the discrete issue, which may by some be regarded as quite a small issue, but to others it is, by itself, a very important issue, which is the issue of housing unfitness. The importance of that is our very, very simple case: can it be right, in this day and age, for every tenant, including housing association tenants, to have remedies in respect of unfit dwellings, dwellings that are unfit for human habitation, but not council tenants? That in itself raises particular issues in relation to the scope of Article 14 which are important for a large group of people.

So, for those reasons, in my respectful submission, your Lordship should consider granting permission rather than leaving it to the Court of Appeal, who have already flagged up, I think, in their own cases recently, what a difficult issue this is.

There is only one point that perhaps I ought to address, going the other way, is: is an appeal merited, given the particular facts of this case, and on the face of it the relatively low value of remedial works? One can say immediately about that, that if Lambeth had not withdrawn its offer, and if it had carried out those remedial works, then a very, very serious question would have arisen about pursuing the case to final judgment because of the possible significant wider importance of it, but that has not happened.

The case has come now to final hearing, without any objection on any of the parties that it is not merited, because of the size of the subject matter; clearly because of the implications, the significant wider public interest, which go far beyond the particular claimant in this particular flat. In my respectful submission it would clearly not be appropriate, and having made the decision which is so important, to then say, "but no more on that ground." So that is my application.

MR JUSTICE MITTING: Thank you. I better hear if anyone has anything to say about this -- I know you are not directly involved in the decision.

MR KARAS: My Lord, on the point of high (inaudible), the principle, as your Lordship called it, I must accept, having made the concession -- or perhaps I do not have to put it that I must accept it, but it would not really lie in my mouth to accept that the point was not arguable, that is true, and it is also fair to say that the issue is one of some debate. So, your Lordship may well conclude that the matter is of some importance. On the other hand, this is litigation between parties, and the fact that there will be a consideration by Mr Rance, or one of his colleagues, of whether or not improvements can take place under section 9, may render these provisions otiose in terms of the litigation between the parties. There is a question of proportionality which your Lordship is entitled to take into account.

Ultimately, all I can say is that it is a matter for your Lordship's discretion. But there is a great deal of public money which will be spent on this litigation and has been spent so far which, ultimately, may well be entirely otiose given the decision that Mr Rance will inevitably have to take over the next few weeks.

MR HUTCHINGS: My Lord, I would adopt what my learned friend for the Office of the Deputy Prime Minister says. There are two ways in which this interesting point could become otiose. One is, as your Lordship knows, the defendants have obtained a preliminary view, from its own Environmental Health Officer who deals with the enforcement of fitness in the private sector, that this kitchen is not unfit. The second is, that in any event Mr Rance will consider whether or not, in the exercise of his discretion, he ought to, or the defendant ought to, in some way improve the position in relation to electrical sockets. So there are two ways in which very easily this matter could become a bit of a storm in a tea cup and academic.

MR JUSTICE MITTING: Thank you.

MR KNAFLER: Well, in every litigation, right up to the 11th hour, there is the possibility of full proceedings becoming academic. I am due to start a case in the House of Lords tomorrow and the other side has spotted something, this afternoon, that might make their case academic. If it happens then it will have to be looked at.

The second point I make is this, and I do not want this to be misconstrued, it obviously not a threat or anything like it, it is just a simple statement of fact that my instructing solicitors, and many others in London and in other towns in the country, have many, many cases which start out as disrepair cases and then one finds in the inspection reports that there are items which are not disrepair, but which are unfitness. These things crop up regularly. I do not think I need, surely, to persuade anybody of that. Therein lies the importance of the case. At some point, if this case does indeed become otiose, which is entirely hypothetical, it has not done so now, after a good many months, then a judgment will have to be made at that point as to whether or not this particular case ought to be carried forward given its wider public importance, or whether some other case had, because the other way of looking at it is, although one may say: well, you should get a stronger case on unfitness and pursue that, the point is that a lot of public money has already been spent on this case, and it could all be wasted if these important issues which, in my respectful submission, are almost bound to result in further consideration at some stage, are brought on the back of some other case, starting afresh.

MR JUSTICE MITTING: Thank you, Mr Knafler. In the light of the money that has already been spent on these proceedings, the obvious arguability of the question and its importance for other cases, I grant you permission to appeal. I do so with a little dismay, given the relative triviality of the underlying factual issue, and the ease with which it could be put right. I observe that it may be possible for public money to be conserved somewhat if the defendants agreed to join forces and instruct one counsel not two. Their interests now being, I would have thought, coincident. But that is a matter for them, not me.

MR HUTCHINGS: My Lord, I should mention that I do have an application for costs. I am entitled to an order for costs, whether or not it is enforced is another matter. I know that I do not have instructing solicitors sitting behind me, but the auditors of the local authority would not be happy if I did not seek and obtain an order for costs to which I am entitled.

MR JUSTICE MITTING: Well, it is a local government pocket seeking money out of a central government pocket, is it not?

MR HUTCHINGS: Well, my Lord, it would be subject to the usual provision that it would not be enforced without --

MR JUSTICE MITTING: I am sorry, I was thinking of a case brought on appeal which this is not.

MR HUTCHINGS: My Lord, quite so. On appeal it is different.

MR JUSTICE MITTING: This is an order which you seek which is never going to be enforceable.

MR HUTCHINGS: My Lord, most unlikely. It would be a lottery order, as it were.

MR JUSTICE MITTING: Right. Anything to say about that, Mr Knafler?

MR KNAFLER: Well, it is fair to say that my learned friend has won on the important point. His victory, if it is a victory, is far less clear in relation to the discretion to improve, which is a point which has somehow been in front of the local authority for a good many months, but as your Lordship has indicated it has not yet been properly decided. In my respectful submission it is a test case, the way it has been pursued is a test case, the council could have put this right for £100. It is a test case, the resolution of the issues will be of interest to the council, as well as to everybody involved. It is robbing Peter to pay Paul, making any kind of costs order in this case -- except that --

MR JUSTICE MITTING: Because this is not an appeal, it is an order which would be wholly theoretical, but which, I believe, I am nonetheless required to make.

MR KNAFLER: In my respectful submission, your Lordship has a discretion which need not be exercised in that way in this case.

MR JUSTICE MITTING: I am afraid I think that it must be exercised, for what it is worth, in accordance with the usual principles and I so exercise it. I make the usual order for costs not to be enforced.

MR KARAS: My Lord, perhaps I can just indicate, I am not applying for my costs. In relation to your Lordship's observations that my interests coincide with those of the local authority, that is not quite so. I have a direct interest in the declaration of incompatibility, which although my learned friend has argued in respect of, his authority has no such interest because if the law is incompatible it is still bound to apply it in its incompatible state. My interest is very limited, and it is a different one.

MR JUSTICE MITTING: I stand corrected. I will say no more about the topic.

MR KNAFLER: My Lord, finally, I ask for detailed assessment of the claimant's publicly funded costs?

MR JUSTICE MITTING: Yes. I do not intend to let the closing stages of this case pass without expressing my gratitude to all three of you for grappling at very short notice, at my instigation, with a very important and far from easy issue.