Mays, R (on the application of) v Brent

MR JUSTICE COLLINS: In 1978 the claimant's mother, Mrs Marjorie Mays, was divorced, and on 21st May 1979 was granted a secure tenancy of 28 Malvern Road, London, NW6. This was a tenancy granted by the London Borough of Brent ("the local authority"), and the premises in question were a four-bedroomed house. At that time, that is to say in May 1979, those living in the property were the claimant's mother, herself and her two brothers, who were aged 16 and 14 respectively.

On 1st July 1996 a suspended possession order was made against Mrs Mays on the basis that she had not paid her rent and arrears had built up. That order was suspended on payment of current rent and £2.50 per week off the arrears. Very shortly after the order was made, it was breached, albeit, it would seem, not to any large extent, because no action was taken against Mrs Mays. She remained paying rent and, to an extent which is not on the evidence before me entirely clear, reducing the arrears of rent until she died on 14th April 2002.

At the time of her death the claimant, together with her daughter who was aged 9, was living at the premises, as was Mrs Mays' ex-husband. There was an issue as to when her husband moved in. Mrs Mays was claiming housing benefit over a substantial part of the 1990s, and in respect of that claim she asserted to the local authority that no one else other than her daughter was living at the premises; certainly, she did not indicate that her ex-husband was living there. He says now that he was indeed there and had been there since she fell ill in 1992, and had been providing her with financial support during the whole of that period. He was not aware of the state of the tenancy or the state of her financial affairs, and indeed appears to have been unaware that she had fallen into arrears and that an order for possession, suspended as I have indicated, had been made. Certainly, he says he was unaware that she had been claiming housing benefit.

Following her mother's death, the applicant went to the local authority and made an application that she be permitted to take over the tenancy as a successor. That would have been appropriate had the tenancy been in existence at the date of the death. She had been living with her mother for the whole period of the tenancy, that is to say since 1979, so for well over 20 years, when her mother died. The application that she made specified the household as herself and her daughter. That application was made on 24th April, very shortly after her mother's death.

The official at Brent Housing Office who dealt with her claim has noted that a death certificate was submitted, that an application for succession was completed, that she had been advised of the situation in relation to the current arrears, and that she was asked to return with proof of her daughter (by means of child benefit documents and her birth certificate), and that when all documents were received, the matter could be processed. It seems that she came in the next day, on 25th April, because we have an interview note. On that it has been noted that there was a suspended possession order which had been breached, and the action that was indicated as appropriate was that the housing office should write to the management to allow for succession to be authorised, and that the claimant should be rehoused to a two-bedroomed property. The housing office would contact her to tell her of developments.

It will be noted that at that stage no mention had been made, according to the form and the interview notes, of the claimant's father. However, she says that when she went in on 24th April, she told the official of the situation, that her father had been living there since 1992, but that she was told that her father should not be put down on the form because that could be dealt with later if necessary. If that advice was given, it was clearly wrong; indeed, it was very strange advice, and Mr Turner has submitted in the circumstances that that account is really incredible. Be that as it may, it appears that on 25th April, having seen the junior official, she went to see her supervisor, or a more senior official, because we have a note of the interview from the more senior official. This states that she completed an application to succeed to another tenancy. It goes on:

The action agreed was:

Having said that the original account seemed well nigh incredible, we have there the senior officer accepting that a fresh application could be put in. So, on the face of it, he does not appear to be entirely rejecting the account. However, I have not had the benefit of any evidence which relates specifically to that issue. Suffice it to say that a subsequent application was lodged, dated 25th April, and that did refer to the ex-husband, and stated that he had come on the scene on 1st May 1992.

The local authority then had to consider whether that application could succeed, and it decided that it could not. On 10th June it wrote a letter to the claimant in these terms so far as material:

The claimant then sought advice, and her solicitor got in touch with the council. As a result, on 15th July the council's Legal Services Department wrote a letter explaining the situation. What it stated in effect was, as I have indicated, that there was no secure tenancy and that arrears of rent still existed because Mrs Mays had breached the terms of the original suspended order, and it pointed out that there was no secure tenancy because of the decision in Brent London Borough Council v Knightley 29 HLR 857. It concluded:

The claimant's solicitors wrote the following day to the council, stating as follows so far as material:

The council's reply to that, again from the Legal Services Department, was that the points raised had been taken into account, but the author was satisfied that the council was, as he put it, "within the parameters of the law in considering instituting legal proceedings". He goes on:

The proceedings for possession were issued before the County Court on 6th August. It is to be noted that on the pro forma there is a question, "Does or will the claim include any issues under the Human Rights Act 1998?" to which the answer was "no". The history was set out in the claim, very shortly, indicating what I have already gone through.

On 30th August the application for judicial review, which is now before me, was lodged on the basis that by seeking to remove the claimant from the premises, the local authority was acting in breach of her rights under Article 8 of the European Convention on Human Rights. The contention is that the council ought to have considered her rights under Article 8 and, more particularly, whether to seek possession, or obtain possession, would be disproportionate, and so could not be justified within the terms of Article 8(2). It is, I should say, common ground, and indeed perhaps obvious, that the removal from her home of someone such as the claimant, who had lived there for over 20 years, would constitute an interference with her rights under article 8(1) of the Convention.

The concept of a home is not limited to an occupation which is lawful or which has been lawfully established. Clearly, where someone has lived in premises for a substantial period of time, that in itself is capable of constituting those premises that person's home, and that home will be protected by virtue of Article 8. The European Court has decided that whether property constituted a person's home was dependant on the existence of sufficient and continuous links with it. It is equally clear that eviction is capable of constituting an interference with respect for a person's private life. Authority for that is to be found in Marzari v Italy [1999] EHRR CD 175. That is reinforced by observations of Sedley LJ in Lambeth London Borough Council v Howard [2001] 33 HLR 58, paragraph 30, where he said:

That is the contention here on behalf of the local authority, that there is a right of possession which is unqualified on proof of entitlement because the secure tenancy came to an end when the suspended possession order was breached, and thus there was no tenancy to which the claimant could succeed, and accordingly in law she is a trespasser in the property.

Accordingly, the only powers that the County Court would have in relation to possession proceedings are those which are to be found in section 89 of the Housing Act 1980, which is, if persuaded that there are exceptional circumstances, to grant, at most, a six week period of suspension of any possession order. That, incidentally, means that in a case such as this, the County Court would not be able to hold its hand, even if it were persuaded that there were a breach of Article 8. I say that because section 6 of the Human Rights Act 1998 applies in the circumstances here. Section 6 provides:

The County Court's powers are constrained by section 89 of the 1980 Act. Accordingly, it could not refuse to grant possession, and it could only suspend for, at most, a period of six weeks. Accordingly, even if there were a breach of Article 8, it could do nothing positive to assist the claimant.

Of course, it could be said that in such a case, the local authority could be prevented from acting because it is itself a public authority. It has a discretion as to whether it seeks to evict, and it is therefore not provided with the protection of section 6(2)(a) of the Human Rights Act. The only court which can deal with that is this court, the Administrative Court, which, of course, does have the power to prevent a local authority acting in a way which contravenes any article of the European Convention. It is for this reason that in a case such as this -- and this is regrettable -- the only remedy which can be obtained is through this court, and that indeed has been recognised by a number of authorities from the Court of Appeal to which I have been referred. I say "regrettable" because it would obviously be much more desirable, particularly where there may be issues of fact arising (as here might be the case, for example, whether the claimant's father had been living there for the time that is now stated, and whether he is still there and intending to constitute part of the family living there). Further, there is an issue as to what the claimant was told when she made her first application for succession on 24th April. Those matters are matters which this court would normally not determine, and although there is power, of course, to hear evidence and to have cross-examination, that power is very rarely exercised. The obvious forum would be the County Court. However, Parliament has not made that possible.

So there is no question, in my judgment, but that this application had to be brought here, and the suggestion made by the Legal Department of the authority that the matters referred to by the claimant's solicitor, including breach of human rights, could be raised before the County Court, was unhelpful because it would not have done the claimant any good to have raised them there.

Mr Gannon submits that on the facts of this case, it is plain that the authority did not at any stage before it decided to seek possession, consider whether it was a breach of the claimant's rights under Article 8 to do so. That, he submits, is something which they ought to have had regard to in reaching their decision. That is not adding an extra tier to the decision making, it is merely a matter which has to be taken into account when the decision whether or not to issue proceedings is made.

He has referred me to authorities on this issue. He referred me first to Sheffield City Council v Smart [2002] HLR 34; [2002] EWCA Civ 04. That was a homeless person case, and Article 8 was one of the issues raised. The circumstances were that the defendant had applied to the authority as homeless. They owed her a duty, and granted her a non-secure tenancy of a flat. The defendant then, according to her neighbours, caused a nuisance to them. She was warned, but there was a further incident. She was served with notice to quit, and possession was granted. She appealed, and one of the matters that she raised on appeal was that to evict her would be to breach her human rights, and that was a matter which ought to have been properly addressed in the decision.

At paragraph 20 on page 652 of the report Laws LJ said this:

That is why these proceedings are now before me, because it is asserted that the exercise by the local authority of its power to obtain eviction has constituted a breach of Article 8 so far as the claimant is concerned. Further, it is submitted that there has been unfairness in the way the decision has been reached, in as much as there has been no consideration of the claimant's particular circumstances, nor has she ever been asked to respond to a suggestion that she should be evicted. She went to claim succession as a daughter of her dead mother. She ended up by being told that she was going to be evicted, and she has not had, she says, the opportunity of explaining why her circumstances indicate that it would not be proportionate to evict her, notwithstanding that she has no security of tenure, indeed, notwithstanding that she is, in law, a trespasser.

At paragraph 40 on page 659 of the report, Laws LJ noted that if a tenant sought judicial review upon being served with a notice to quit, the Administrative Court might now look at the case more closely than upon the conventional Wednesbury approach because of the decision of the House of Lords in Daly [2001] 2 WLR 1389. He went on thus:

I should also refer to a decision of the European Court of Human Rights in Buckley v United Kingdom 23 EHRR 101. That was a case involving the attempted removal of a gypsy who was occupying land as a trespasser. The court in paragraph 76 of its judgment noted that:

That, submits Mr Gannon, requires the decision maker, in this case the local authority, to consider the individual situation and whether it would indeed be disproportionate to evict her from her home. Absent such procedural safeguards, the decision is one which is flawed and liable to be quashed.

The court then went on to apply the principles, and in paragraph 84 it stated:

I should say that Buckley was not a straightforward eviction case, it concerned a planning decision that the claimants should not be permitted to remain where they were. It seems to me apparent that the court was there regarding the procedural safeguards as the legislation.

What is submitted here is that Parliament has enacted a statutory scheme whereby succession to a tenancy is governed by the relevant statutory provisions. A person can only succeed if he has been living with the deceased for at least 12 months and is a member of his family within the definition contained in the Act. Furthermore, the courts have decided that succession cannot take place where the existing tenancy had been brought to an end, and that is the situation here. The whole scheme, therefore, is to be regarded as one. Parliament must be taken to have been aware of the decision of the courts, and it could have, but has not, amended the statutory provisions to take account of that common law position. In those circumstances, submits Mr Turner, it will generally be unnecessary, save in the most exceptional circumstances, for a local authority to do more than exercise the rights which Parliament has conferred upon it, and there is good reason, he submits, for that approach because, particularly in areas such as Brent, but also generally, a local authority has to concern itself with the proper management of its housing stock where it has less accommodation available than there are applicants for such accommodation. The problem is, of course, particularly acute in inner London, but it is not confined to inner London. Here there was a four-bedroomed house which was, on the face of it, likely to be under-occupied. There was a large number on the local authority's housing list, to many of whom they had obligations under the homeless legislation. They could not be properly housed because of the unavailability of appropriate accommodation. Accordingly, it is submitted, there was ample reason, having regard to those conditions, for the London Borough of Brent to take the view that it would, in situations where succession was not permitted as matter of law, take proceedings for eviction, recognising that it would have obligations under the homeless legislation, because in the circumstances of this case, the claimant would undoubtedly be unintentionally homeless, and would be in priority need because of the existence of her daughter. Accordingly, the local authority will be obliged to find her suitable accommodation. Thus, albeit there would be an interference with her rights under Article 8(1), the statutory scheme provided a proportional justification for that breach.

Mr Turner has referred me to observations in Michalak v Wandsworth London Borough Council [2002] EWCA Civ 271; [2002] HLR 39, and in particular to paragraph 46 of the judgment. In that case, Brooke LJ says this:

Mance LJ in paragraph 78 on page 744 said this:

Although, of course, not precisely on all fours with this case, it seems to me that that approach is one which is appropriate in a case such as this. It would indeed be a frustration of the scheme which Parliament has enacted (including, as it must, the common law additions or refinements of that scheme which are part and parcel of it) if in every case where a person was not within the category of a successor and so could be evicted, consideration had to be given to the circumstances, and those circumstances had to be balanced against the general problems of the council in relation to housing those on its list, and so on. As I have said, it seems to me that the protection of the claimant lies in the homeless legislation which requires, in circumstances such as this, the local authority to provide her with suitable accommodation if she is not to stay in the house where she has lived with her mother, and perhaps her father too, for a substantial period of time.

Mr Gannon has pressed with me with a decision of my own in R v Newham London Borough Council, ex parte Ojuri 31 HLR at page 452, drawing my attention to a passage on page 463 where I indicated that the applicant had lost the chance of obtaining accommodation because his application had not been considered on a proper basis. Here, in my judgment, the application has been considered on a proper basis, the proper basis being the recognition that the scheme enacted by Parliament enabled possession to be obtained, and the knowledge by the council that the pressures on its housing is such that it cannot allow a property which a person is not entitled to occupy, particularly when there is under-occupation, as here, to continue to be occupied by that person in the light of the needs of all the others to whom Brent owe housing duties.

It seems to me that that recognition, that knowledge by the council, and the existence of the scheme are quite sufficient in themselves to mean that the decision was proportionate. Although I recognise, as did Mance LJ, that there might be exceptional cases where it could be said that application of the policy was not justified, or was erroneous in law, this is not such a case. I suppose one could imagine a situation where there was an authority which had no pressure on its accommodation, then if it decided to evict merely because it had the power to do so, that might perhaps not be a proper exercise of its power, but that is not the situation in Brent.

In those circumstances, although, of course, one must feel very sorry, as I do, for the situation in which the claimant finds herself, this application, in my judgment, cannot succeed. I have said I feel sorry for her because it is no fault of hers. That may well be true, although I must bear in mind, so far as the authority is concerned, that her mother, on the face of it, if what is now said is correct, had been defrauding the council of housing benefit over a substantial period of time. If the council is right in its assertion that the claimant was not told by the housing official what she alleges she was told, there may also be some suggestion that she has not behaved entirely as she should. I am not finding that she did behave in that way, I am not in a position to do so, but even accepting entirely what she says, for the reasons that I have given in my judgment, this claim must fail.

Are there any other applications?

MR GANNON: My Lord, I am not sure whether my instructions will require me to make applications, but in order to protect --

MR JUSTICE COLLINS: It would be sensible to make it. You do not have to pursue it, but I am assuming you want to make an application for leave to appeal.

MR GANNON: Yes, I do.

MR JUSTICE COLLINS: Mr Turner?

MR TURNER: I would oppose the application. I would say your judgment was clear and in line with Michalak.

MR JUSTICE COLLINS: You will not be surprised to hear that I do not think it is an appropriate case to give leave. If this is to be pursued, the Court of Appeal must be persuaded.

Presumably you are legally aided, Mr Gannon? Do you want the necessary order for costs? I am told you have not lodged a certificate.

MR GANNON: There is something that looks like a certificate in the trial bundle, in fact. At page 53 there is a notice of issue. That will be considered to be sufficient.

MR JUSTICE COLLINS: You have the order. You had better just make one hundred per cent sure before you leave that you do not need to put in any formal document.

I suppose, Mr Turner, this actually is quite an important decision for the local authorities in London.

MR TURNER: Indeed, my Lord.

MR JUSTICE COLLINS: Can I express the hope that now the circumstances are, perhaps, more clearly known, there will be a sensitive consideration of this lady's needs.

MR TURNER: I will convey that back to those behind me.

MR JUSTICE COLLINS: Obviously, she is threatened with homelessness, so the sensible thing, I would have thought, would be to make the application immediately, and for it to be considered against whatever her needs are. I am sure that will be done.

MR TURNER: I am grateful, my Lord.