Gangera, R (On the Application Of) v The London Borough of Hounslow

The claimant is subject to immigration control and is, thus, not eligible for assistance as a homeless person. He looked after his parents while living with them in their home occupied by them as secure tenants. He is not entitled to succeed to that tenancy. The Council seeks an order for possession.

The claimant resists on two grounds. He says that the rules of succession infringe Article 14 read with Article 8 of the Convention. Secondly, he asserts that to seek an order for possession is disproportionate and irrational at a time when, threatened as he is with eviction, his needs have not been assessed under Section 21 of the National Assistance Act 1948. This case raises a third issue: whether the issues of proportionality and rationality can be raised as a defence to possession proceedings in the County Court.

Mr Gangera entered the United Kingdom as a visitor from Tanzania on the 30th June 1989. He went to live with his parents at premises in Heston, Middlesex owned by the London Borough of Hounslow ("the Council"). Those premises were let to both his parents under a joint weekly secure tenancy. He cared for his father who developed prostate cancer and died on 8th December 1995. His mother then succeeded to the secure tenancy and the claimant remained there, caring for his mother until she died on 10th June 2001. She died intestate.

The claimant is in poor health. He has itchy skin and cannot bathe. He suffers from a blood disorder which is being investigated. He has numbness of his right leg which causes him difficulty when walking. He suffers from non−insulin diabetes, hypertension and liver disease. He also suffers from depression.

After the claimant's mother died, on 22nd November 2001 the Council's housing department told the claimant that he was not entitled to succeed to her tenancy and asked him to vacate on expiry of the notice to quit. On 11th December 2001 a second deportation order was made against the claimant (the first had been made in September 1994) and the claimant applied for leave to remain in the United Kingdom relying on Article 8 of the European Convention on Human Rights. This claim was rejected by the Secretary of State for the Home Department. He has appealed against that decision but the appeal has not yet been determined.

On 23rd January 2002 the Council served notice to quit at the premises in Heston and on the public trustee. On 29th April 2002 a possession claim was issued in the Brentford County Court. On 31st May 2002 the claimant requested the Council's Social Services Department to provide support and financial assistance. A hearing of the possession action was due on 20th June 2002. On 11th June 2002 the Council's housing advisor wrote on behalf of the claimant requesting an adjournment of the proceedings pending the decision of the Home Office as to the claimant's status. It was hoped that the application would be resolved by the Home Office within three to four months and the adjournment was requested for that period of time.

There was some dispute as to what happened in response to the request for an adjournment pending resolution of the claimant's immigration status. It is of some, although limited, significance in relation to the claimant's assertion that it is disproportionate and irrational for the Council to pursue the possession proceedings before assessing whether the claimant's needs are such that he should be provided with accommodation pursuant to Section 21 of the National Assistance Act 1948. Juliet James−Lionel, the District Manager of Hounslow Homes Ltd, a company controlled by the Council said that she was prepared to agree to an adjournment of the possession proceedings for a limited period provided that the claimant made a payment of £300 by 19th June and thereafter paid the weekly use and occupation charge and £5 off the arrears. She said she did not agree to withdraw the possession claim or to have it adjourned generally. (See paragraph 9 of her witness statement). The claimant, in any event, failed to make the payment, the hearing went ahead on 20th June 2002 and was then adjourned, on the application of the claimant's solicitor until 18th October 2002 so that the claimant could file a full defence.

On 28th June 2002 the Council undertook an assessment of the claimant pursuant to Section 47 of the National Health Service and Community Care Act 1990 ("the 1990 Act"). It was conducted by Teresa North, a social worker from the social services department of the Council. She said that at the time of the assessment she was aware that the possession application had been adjourned until October 2002 but mistakenly believed that was a result of the agreement. The assessment recorded that one of the reasons for referral was that the claimant was due to be evicted for non−payment of rent. It also recorded that the possession case had been adjourned and:−

On 9th December 2002 the possession claim in respect of which a defence and counter−claim had been filed, was transferred by consent to the Administrative Court. Following that transfer Maurice Kay J. directed that the claimant should issue fresh proceedings for judicial review. This he has done. The matter comes before me as an application for permission with the substantive hearing to follow if permission is granted. I have heard full argument not only from the Council but also from the First Secretary of State, who is concerned particularly with the argument that the provisions relating to security of tenure in respect of local housing authorities' dwelling−houses are incompatible with the Convention.

Security of Tenure for Secure Tenants.

Part IV of the Housing Act 1985 ("the 1985 Act") creates a scheme restricting a landlord's right to end a "secure tenancy". Section 79 of the 1985 Act defines a secure tenancy as a tenancy under which a dwelling−house is let as a separate dwelling when the "landlord condition" and "tenant condition" are satisfied. Section 80 provides that the landlord condition is satisfied when the interest of the landlord belongs to the local authority (or other bodies providing housing to meet public needs). Section 81 provides that the tenant provision is satisfied when a tenant is an individual and occupies the dwelling house as his only or principal home. It is important to note that Section 79 has effect subject to Sections 89(3) and (4) and 90(3) and (4) (tenancies ceasing to be secure after death of tenant) (see Section 79(2)).

A secure tenancy cannot be brought to an end by the landlord save by obtaining an order from the court pursuant to Section 82 of the 1985 Act. Unless the court considers it is just and equitable to dispense with the requirement, the court cannot entertain proceedings for an order bringing the secure tenancy to an end unless the prescribed notice specifying the grounds on which an order is sought has been served (see Section 83). No order for possession may be made save on one or more of the grounds identified in Schedule 2 to the Act. Moreover, the court's power to make an order for possession is further restricted having regard to the nature of the ground on which reliance is placed. If reliance is placed upon the grounds 1 to 8 within Part 1 of the Schedule the court can only make an order if it considers it reasonable to do so, if the ground is contained within Part 2 of the Schedule (grounds 9 to 11) it cannot make an order unless it is satisfied that suitable accommodation will be available to the tenant when the order takes effect and if the ground is set out in Part 3 of the Schedule (grounds 12 to 16) the court must be satisfied both that it is reasonable to make the order and that suitable accommodation is available.

By virtue of Section 85(2) the court may on the making of an order for possession on any of the grounds set out in Part 1 or Part 3 of Schedule 2 or at any time before the execution of the order either stay or suspend its execution or postpone the date of possession for such period or periods that the court thinks fit.

Succession to a secure tenancy.

Part IV of the 1985 Act contains a detailed code under which members of a secure tenant's family may succeed to the secure tenancy. Section 87 of the 1985 Act provides:−

Section 88(1) identifies those tenants who are themselves successors and in respect of whom, consequently, a tenant cannot himself be qualified to be a successor. Section 88(1) provides that the tenant is himself a successor if:−

A person qualified to succeed to a secure tenancy may do so on the death of or by assignment from the secure tenant. Section 89 of the 1985 Act makes provision where a secure tenant dies and the tenancy is a periodic tenancy. By virtue of Section 89(2):−

Section 91(1) and (3)(c) prohibit the assignment of a secure tenancy save that it may be assigned to a person who would be qualified to succeed the tenant if the tenant died immediately before the assignment. By Section 93(2) if a tenant under a secure tenancy parts with possession of the dwelling house or sub lets the whole of it, the tenancy thereupon ceases to be a secure tenancy.

The end of a secure tenancy following the death of a secure tenant.

Where there is no person qualified to succeed the tenant under the code for which provision is made in Sections 87 and 89 the tenancy ceases to be a secure tenancy when it vests in course of the administration of the tenant's estate unless the vesting is pursuant to a property adjustment order in connection with matrimonial proceedings or an order for financial relief against parents under paragraph 1 of Schedule to the Children Act 1989 (see Section 89(3)). It is important to note that when a tenancy ceases to be secure under Section 89 it cannot subsequently regain its secure status (see Section 89(4)). Similar provision is made in respect of a secure tenancy which is for a term certain (see Section 90).

Accordingly, a landlord is able to end the tenancy and to recover possession without any inhibition under Part IV of the 1985 Act. He simply has to serve an appropriate notice to quit. However, under Section 3(1) of the Protection from Eviction Act 1977, in cases where an occupier continues to reside in the premises:−

The general management regulation and control of houses belonging to a local housing authority is vested in and to be exercised by that authority by virtue of Section 21(1) of the 1985 Act. Part VI of the Housing Act 1996 makes provision for the allocation of housing accommodation. Part VII of the Housing Act 1996 makes provision for the local housing authorities to give housing assistance to homeless persons. It is worth recording at this stage that by virtue of Section 175(1) a person is homeless if he has no accommodation available for his occupation in the United Kingdom or elsewhere which he:−

The management and allocation of housing accommodation by local housing authorities is subject to certain statutory constraints. Save with the consent of the Secretary of State an authority may not dispose of any land for the provision of housing otherwise than by letting under a secure or introductory tenancy or in consequence of the right to buy (see Sections 32 to 34 of the 1985 Act). Selection of persons to be a secure or introductory tenant of housing accommodation must be in accordance with Part VI of the Housing Act 1996 requiring such person to be eligible and the allocation to be in accordance with the authority's own scheme (see Section 160A and 167(8) of the 1996 Act). The priorities within an authority's allocation scheme are themselves subject to the priorities identified within Section 167(2) of the 1996 Act, as amended by the Homelessness Act 2002.

By virtue of the provisions of Sections 87, 88(1)(b) of the Housing Act 1985 the claimant cannot succeed to his parents' joint tenancy. On the death of his father, who was the joint tenant with his mother of the premises at Heston, the claimant's mother became the sole tenant by virtue of the principle of survivorship within Section 88(1)(b) of the 1985 Act. Accordingly, although the claimant was another member of the tenant's family since the tenant, his mother, was herself a successor as defined in Section 88 the claimant is not qualified to succeed her by virtue of Section 87. In those circumstances the tenancy ceased to be a secure tenancy by virtue of Section 89(3) of the 1985 Act. Mr Zia Nabi contended on behalf of the claimant that the provisions prohibiting the claimant from succeeding to his mother's secure tenancy infringed Article 14 of the European Convention on Human Rights read with Article 8. Article 8 provides:−

It is important to observe that Mr Nabi, on behalf on the claimant, does not contend that the provisions in relation to succession to a secure tenancy themselves infringe Article 8. It is not surprising that he eschews any such argument. The policy underlying the rules of succession contained within the 1985 Act, in the context of the legislative provisions relating to the management and allocation of local authority housing, is clear. As Dawn Eastmead, a divisional manager in the Directorate of Housing of the office of the Deputy Prime Minister, points out in her witness statement, at the time of the introduction of the Housing Act 1980 the Minister observed that it was necessary to strike a balance between the needs of the tenant's family and the duty of a local housing authority to manage its housing stock in the interests of the locality and of those in greatest need. (See paragraph 13). The restriction on the rights to assign provide for some limitation to the duration of a secure tenancy so as to make available local authority housing in the interests of the needs of others (see paragraph 20). Every secure tenant, whether sole or joint, is limited to one assignment or other transmission of the secure tenancy. The rule limiting succession to one transmission applies to all secure tenants equally. In Wandsworth London Borough Council v Michalak (q.v. supra) Mance LJ commented upon these provisions:−

It is plain that Parliament had to strike a balance between security of tenure and the wider need for systematic allocation of the local authority's housing resources in circumstances where those housing resources are not unlimited. The striking of such a balance is pre−eminently a matter of policy for the legislature. The court should respect the legislative judgment as to what is in the general interest unless that judgment was manifestly without reasonable foundation (see Mellacher v Austria [1989] 12 EHRR 391 paragraph 45; Lord Woolf CJ in Poplar Housing Association Ltd v Donahue [2002] QB 48 at paragraph 69, page 71). There is no basis for contending that the statutory scheme, which seeks to allocate public resources for the provision of local authority housing to those most in need, amounts to a disproportionate interference with a person's right to respect for his home. No such contention is made in the instant case. But the claimant advances the more limited argument that the provisions constitute unlawful discrimination. The proper approach to this issue was identified by Brooke LJ in Wandsworth London Borough Council v Michalak at paragraph 20.

The first question is whether the facts fall within the ambit of one or more of the substantive convention rights. There is no dispute that they do since Article 8 is engaged. The order for possession threatens to infringe Mr Gangera's rights enshrined in Article 8(1).

The second question is whether there was a difference in treatment as respects the rights enshrined in Article 8 between the complainant on the one hand and other persons put forward for comparison on the other. The claimant contends that his position should be contrasted with two comparators. Firstly, if his mother had been the sole tenant from the commencement of the tenancy he would have been entitled to succeed. Secondly where there is no spouse, and a secure tenant was not formerly a joint tenant, the tenant's nephew by marriage could succeed to the secure tenancy so long as he fulfilled the requirement of residing with the tenant for a period of twelve months ending with the tenant's death. Again, there is no dispute but that in relation to the chosen comparators there is a difference in treatment.

The third question is whether the chosen comparators are in an analogous situation to the complainant's position. In my judgment they are not. In the first example the claimant's father was never a tenant. In the second there was no spouse to whom the secure tenancy may be transmitted. The answer to the claimant's submissions is that the legislation has not discriminated against the claimant on the basis of his status at all. In Kjeldsen & ors v Denmark (1976) 1 EHRR 711 the European Court of Human Rights said that Article 14 prohibits discriminary treatment having as its basis or reason a personal characteristic by which persons or groups of persons are distinguishable from each other (see paragraph 56). Since that case, as Brooke LJ pointed out at paragraph 34 in Wandsworth London Borough Council v Michalak, the Court has not limited the concept of discrimination to personal characteristics. The Court has found discrimination between owners of non−residential as opposed to residential buildings, owners of Pit Bull terriers as opposed to owners of other breeds of dogs and between small as opposed to large landowners. But however widely ‘status' may be interpreted it is clear to me that there has been no discrimination on the grounds of status whatsoever. The reason why the claimant is not entitled to succeed to his mother's tenancy does not depend upon his status at all. It is because his mother had become the sole tenant and therefore, by virtue of the operation of Section 88(1)(b) of the 1985 Act, she was herself a successor. The difference in treatment follows from the fact of a previous succession not because of the status of the claimant. His chosen comparisons are not true comparisons at all. In his two examples the comparators were succeeding to a secure tenant who was not himself a successor within the meaning of Section 88(1).

The fourth question identified by Brooke LJ at paragraph 20 of Michalak is whether, if the chosen comparators were in an analogous situation to the claimant's position, the treatment had an objective and reasonable justification. In other words did it pursue a legitimate aim and did the differential treatment bear a reasonable relationship of proportionality to the aim sought to be achieved? In the light of my conclusions this question does not fall for answer. But it was considered, in the context of the provisions in relation to succession to secure tenancies, in Wandsworth London Borough Council v Michalak. In that case there was discrimination between a distant relative in an analogous situation and one of the close relatives mentioned in Section 113 of the 1985 Act (see paragraph 39). In those circumstances the Court of Appeal did consider whether the treatment had an objective and reasonable justification. That justification was to be found in the very scheme which permits only one succession or assignment. Of that limitation Brooke LJ said:−

I conclude that the succession provisions do not infringe Article 14 read with Article 8. This conclusion is important when considering the claimant's further contentions. It demonstrates that read as a whole, and in the context of management and allocation of local authority housing there is no incompatibility between the secure tenancy scheme and Article 8 of the European Convention on Human Rights.

The claimant argues that the decision to seek an order for possession against the claimant is a threat to infringe his rights under Article 8(1). Although the claimant has no right to succeed and is, consequently, a trespasser the concept of home in Article 8 in autonomous. Article 8 protects respect for the rights of a trespasser having a home as much as one who is lawfully resident (see Arden LJ in Qazi v the Council of the London Borough of Harrow [2001] EWCA Civ 1834 at paragraph 47 to 57 and Peter Gibson LJ at paragraph 66 and [2002] HLR 14). Mr Nabi in his moderate and clear submissions contends that the authority's decision must be viewed in the context of the local authority's obligations under Section 21 of the National Assistance Act 1948. He argues that the assessment under the National Health and Community Care Act 1990 made on the 28th June 2002 was tainted by the mistaken impression that there had been an agreement to house the claimant until his immigration status was settled. In those circumstances it was disproportionate or irrational to seek to obtain possession without further assessing whether, in the absence of any conclusion as to his immigration status, the local authority was going to meet his needs by providing accommodation under Section 21 of the 1948 Act. If such a possibility existed it was premature to seek to obtain possession when there remained a possibility that his needs would be met by permitting him to continue to reside at his parent's former home or to house him in similar accommodation. It was not, in short, proportionate or rational to wait until after a possession order had been obtained. Such an assessment ought to made now and there was no reason to wait until later.

By Section 21(1) of the National Assistance Act 1948:−

The Secretary of State has directed local authorities to make arrangements under Section 21(1)(a).

Part III of the National Health Service and Community Care Act 1990 makes provision for community care services. By virtue of Section 47(1) of the 1990 Act the local authority is under an obligation to carry out an assessment of a person's needs for community care services including, by virtue of Section 46(3), services under Section 21(1) of the 1948 Act, where it appears to the local authority that any person for whom they may provide for or arrange for the provision of community care services may be in need of any such services.

The local authority has already accepted its obligation to carry out an assessment of the claimant's needs and has done so in June 2002.

To my mind, the contention that the claimant is or might be entitled to be provided with accommodation to meet his needs pursuant to Section 21 of the 1948 Act is premature. As I have pointed out, the claimant is not eligible for assistance under Part VII of the Housing Act 1996, the homelessness provisions, by virtue of his immigration status. Even if he were, there is no obligation on a local housing authority to determine whether a person has a priority need before deciding to institute possession proceedings against a trespasser (see the R v London Borough Barnet ex parte Grumbridge [1992] 24 HLR 433 at 440).

I accept that the authority is under an obligation not only to consider the claimant's actual situation but also imminent events which might lead them to anticipate a deterioration in the claimant's condition which might otherwise take place in the absence of assistance under Section 21 (see Scott Baker J in R v Bristol County Council ex parte Penfold [1998] 1 CCLR 315 at 317). But the local authority was entitled to take the view that the claimant was not homeless and thus was not in need of accommodation. There was no obligation to consider his needs in hypothetical circumstances in the future when, for all the local authority knows, his immigration status may have become settled.

It is instructive to consider the position were the claimant eligible for consideration under the homelessness provisions within Part VII of the Housing Act 1996. Section 21(1)(a) of the 1948 Act imposes a residual duty which is not likely to be considered before an assessment under the homelessness provisions of Part VII. But an assessment under Part VII cannot take place until after a possession order has been obtained because a person does not become homeless until his right to remain in occupation under Section 3 of the Protection From Eviction Act 1977 is determined by execution of the possession order. Until that time the claimant, were he eligible for consideration under Part VII, would not be homeless because he would occupy the residence by virtue of Section 3 of the 1977 Act (see Section 175(1) of the 1996 Act). As Latham LJ said in R (Sacupima) v Newham LBC [2001] 1WLR 563 at 578:−

In those circumstances the claimant is seeking an advantage over and above those who would be eligible for assistance under Part VII of the Housing Act 1996. He is not homeless at the moment and there is, accordingly, no warrant for anticipating any re−assessment of his needs or the result of any such re−assessment until such time as the court makes an order for possession and determines the period pursuant to Section 89(1) of the Housing Act 1980 for postponement of the giving up of possession. It should be noted, further, that by virtue of Section 175(4) of the 1996 Act this claimant would not even be threatened with homelessness unless it is likely that he would become homeless within 28 days. Consequently, where the court postpones the order for possession for six weeks it would only be within the last 28 days that the claimant would be threatened with homelessness were he to be eligible under Part VII of the 1996 Act.

Accordingly I conclude that there was nothing disproportionate or irrational in the Council's decision to institute possession proceedings without any further assessment of his needs other than that undertaken in June 2002.

The argument as to the proportionality or rationality of the Council's decision to institute an order for possession does, however, raise an important issue, as to the appropriate forum for raising the claimant's contentions that the decision to issue proceedings for possession infringed his rights under Article 8 because they were disproportionate or because they were irrational. Both the Council and the First Secretary of State contend that it was not open to raise those issues, whether under Article 8 or on traditional judicial review grounds, other than by way of an application for judicial review. It is to that issue I now turn.

Mr Nabi, on behalf of the claimant, contends that in the rare and exceptional circumstances of this case it would have been open to him to advance his contentions that it was disproportionate and irrational of the Council to seek an order for possession against Mr Gangera in the County Court proceedings. His argument, which lost nothing by the moderation with which it was expressed, limits the contention to rare and exceptional cases. It is, however, necessary to consider whether there is any room for such a limited submission. This, in turn, requires analysis of the implications of his submission. The Secretary of State, supported by the Council, submits that to permit the County Court to consider, in each case, the proportionality and rationality of the decision to seek possession is an unwarranted interference with the legal system for the protection of property rights within the United Kingdom.

The starting point must be the proposition that the Convention recognises that eviction of a trespasser may be justified as necessary in a democratic society for the protection of property rights of others without the need to consider the particular circumstances of the parties directly involved at the time of conviction. In particular the European Court of Human Rights has accepted that questions of proportionality may be determined at a collective, or as it has been described at a "macro" level and not at an individual or "micro" level. Thus in James v United Kingdom [1986] 8 EHRR 123 the court considered the proportionality of the system of leasehold enfranchisement in the Leasehold Reform Act 1967 in the context of Article 1 of Protocol No. 1 and Article 14. In Mellacher v Austria [1989] 12 EHRR 391 the court considered the imposition of rent control legislation within the Austrian Rent Act 1981 on a collective basis. In Poplar Housing (q.v. supra) the Court of Appeal considered the decision of a District Judge in relation to a registered social landlord's claim for possession of a weekly non−secure tenancy. Although the court considered that the judge was entitled to dispose of the issues raised under Article 8, it stated it was not necessary at his level to hold a state trial into government housing policy in order to balance the public and private issues to which Article 8 gave rise (paragraph 28). It recorded, that the outcome of the appeal to a substantial extent depended upon the legislative framework. It considered the facts only to the extent necessary to examine how the legislation worked on the ground (see paragraph 30).

The claimant's argument derives from the fact that a court is bound to be involved by virtue of Section 3 of the Protection from Eviction Act 1977. If the court were not involved, the landowner could rely upon his common law right of self help. Section 3 was designed to provide some limited protection to a defendant in possession proceedings restricting the manner in which one entitled to possession of property may enforce his rights. But, on the claimant's argument, the very nature of the right to possession is affected by the court's intervention. It is, therefore, necessary to consider whether the court's intervention pursuant to Section 3 has the effect for which the claimant contends.

The fact that the court is required to intervene when a landlord seeks to enforce rights of possession does not lead to the conclusion that the court is bound, in each case, to consider whether an order for possession would, in the circumstances of the individual case, be disproportionate and contrary to Article 8. In Di Palma v U.K. [1988] 10 EHRR 149 the Commission considered that whether the argument that refusal of relief against forfeiture infringed rights under Article 1 of the 1st Protocol and Article 8 was manifestly ill founded.

It is, to my mind, no different where the court's power to postpone recovery of possession is limited by virtue of Section 89 of the Housing Act 1980. So long as the system, viewed collectively, is proportionate, its application to individual cases should itself be regarded as compliant with Article 8(2) and not require the court to consider the individual circumstances of the case. True it is that the court, as a public authority, is obliged to comply with the provisions of the Convention, pursuant to Section 6(1) of the Human Rights Act 1998. But that does not mean that the court is required to consider the proportionality of any order it makes in an individual case. It is sufficient if the court itself is applying a system which, viewed as a whole, complies with the Convention. The system as a whole is compatible with Article 8(2) and it was not contended to the contrary. Parliament has decided in which cases the court should have a discretion to decide whether or not it is reasonable to order possession of residential property and the circumstances in which there is some discretion to suspend the execution of such an order. Such a discretion falls to be exercised compatibly with Article 8. But, so long as the system as a whole is compatible with the Convention, it is not for the court to arrogate to itself a discretion in other cases. Nor does it make any difference in principle that the landlord seeking to enforce its civil right is itself a public authority (see paragraph 29 in Poplar Housing (q.v. supra)). There may be circumstances in which it is open to one who resides in premises owned by a local authority to contend that actions of the local authority itself infringe his convention rights. But such a contention will raise questions as to the obligations of a public authority in respect of convention rights and does not touch upon the task of the court in determining civil property rights. The question is thus, not whether the system in its application to a particular individual is compliant with the Convention but, rather, whether the system, viewed as a whole, is compliant.

It has not been contended that the system, with its limited right of postponement, infringes Article 8. But it important to observe that such a contention could not now be advanced in this court. The matter has, to my mind, been disposed of by the decision of the Court of Appeal in Michalak (q.v. supra). In that case the court held that there was no need for evidence to be placed before the judge tending to show that the making of the possession order was necessary for one of the reasons set out in Article 8(2) of the Convention (see paragraph 44 to 46). Brooke LJ said:−

In Royal Borough of Kensington and Chelsea v O'Sullivan [2003] EWCA Civ 371 the Court of Appeal was again concerned with a secure tenancy under the 1985 Act. The approach of Mance LJ in Michalak was approved expressly by Waller LJ at paragraph 82 with whom Aldous LJ agreed completely (see paragraph 90). Waller LJ said:−

These authorities demonstrate that the statutory scheme in relation to the termination of secure tenancies complies with Article 8(2). But they also establish the further point that it is not open to an individual such as the claimant to resurrect arguments as to necessity and proportionality in an individual case. The claimant seeks to do so only on a limited basis. He relies upon dicta of Laws LJ in Sheffield City Council v Smart [2002] EWCA Civ 04 and [2002] HLR 34, which concerned the right of a local authority to evict a homeless person, housed by the local authority, on the grounds of nuisance. Laws LJ held that the scheme had to comply with Article 8(2). It did involve a violation of Article 8(1) (see paragraph 27). It was argued on behalf of the tenant that in each case it was necessary for the housing authority to establish that on the particular facts it was necessary and proportionate to evict the tenant (see paragraph 29). Laws LJ distinguished between those cases where the court was required to adjudicate on the merits of an individual case (for example in relation to a secure tenancy and a gypsy case) and those cases where the court has given no discretion but required to make an order (see paragraphs 31 and 32). In cases where the court is required to make an order Laws LJ said:−

It is important to note that Laws LJ was considering the propriety of the actions of a local authority and not the role of the court itself as a public authority. Further, as Laws LJ made clear he was considering only those cases where something wholly exceptional had happened after service of the notice to quit (see paragraph 40). He himself recognized that his observations were obiter. Smart, accordingly, stands as a further authority as to the compatibility with Article 8 of a legislative scheme which removes any discretion from the court as to the making of a possession order.

Moreover, I accept, as the First Secretary of State contended, that if the Court in cases such as these, was bound to adjudicate on the compatibility of an order for possession it would be bound to do so in every case, even those in which the landlord was a private person. In short, the claimant's argument would fundamentally transform our law as to enforcement of property rights into one where such rights could only be enforced when the court thinks it justifiable to seek possession and proportionate to make an order. I conclude that a court is not required to adjudicate on compatibility in each case.

But that stills leaves open the question whether the public law argument may be raised as a defence in possession proceedings when the local authority's decision is impugned.

The claimant relies upon the decision of the House of Lords in Wandsworth London BC v Winder [1985] AC 461 and of the Court of Appeal in Wandsworth London BC v A [2000] 1 WLR 1246 in contending that his arguments under Article 8 and as to rationality can be raised as a defence in possession proceedings. In Michalak the Court of Appeal left open the question as to whether those decisions affected Laws LJ's view that the local authority's decision to serve a notice to quit was amenable to judicial review but would not be a defence to the local authorities claim for possession (see paragraphs 50 and 79). However the Court of Appeal was clear that in the case of Mr Michalak the Council could always rely upon the statutory framework of the scheme for secure tenancies as a reason for deciding to seek possession (see the passage I have already cited in the judgment of Brooke LJ at paragraph 50 and Mance LJ at paragraph 80). In Royal Borough of Kensington and Chelsea & O'Sullivan Arden LJ stated:−

As the Court of Appeal pointed out in Michalak, Wandsworth LBC v A [2000] 1 WLR 1246 was not cited to Laws LJ. In that case the Court of Appeal emphasized that the defendant had a right in private and not in public law by reasons of her licence. The effect of the public law decision to ban the parent from the school premises was to take away that private law right. It was not abusive for the parent to defend her private law right by arguing the invalidity of the school's decision in public law (see Buxton LJ 1258C). He recorded that the case was distinguishable from those cases where private law proceedings were being used to challenge a public law decision. Such a case fell within the category explained in Avon and County Council v Buscott [1988] QB 656 in which the gypsies were pure trespassers and were not seeking to challenge the local authority's decision in support of any private law right. (See 1258D).

In the instant case the claimant is not seeking to invoke either Article 8 or the arguments as to rationality in support of any private law right at all. He seems to me to fall within the same category as Michalak and can, accordingly, only rely upon his rights enshrined in Article 8 and arguments as to rationality by challenging the Council's decision in judicial review proceedings following service of the notice to quit. In any event there is nothing in his case which brings it within the rare or exceptional category to which Laws LJ referred. This claimant is in no different position to that of Michalak. It would be wholly inconsistent with the Court of Appeal's conclusions in Michalak and O'Sullivan if in a case such as this the County Court had to consider whether the case was rare or exceptional.

For these reasons I conclude that the claimant's true challenge is a public law challenge to the Council's decision to seek an order for possession.

For the reasons I have already given the claimant's public law challenge to the Council's decision fails. The Council was under no obligation to consider the claimant's needs pursuant to Section 21 of the National Assistance Act 1948 prior to the determination of its claim to possession. The claimant's resistance to the possession claim was made in a defence and counter claim filed six months later. The arguments should have been advanced by way of judicial review. Some two months delay was caused by the need to obtain legal aid but thereafter no excuses were proffered other than that the claimant was seeking to raise the arguments by means of his defence and counter claim. He persisted in the contention that the County Court was the appropriate forum in which his arguments should be raised despite contentions to the contrary expressed in correspondence from the Council on 8th November 2002 and subsequently.

The proceedings should have been brought promptly and in any event within three months. For the future it should be made clear that anyone seeking to argue that a decision to seek possession is disproportionate or irrational should do so promptly and in any event within three months by way of judicial review. The reason for the delay in this case was the incorrect contention that the County Court was the appropriate forum for litigation of the issues raised by the claimant. Unless I take the view that those contentions were unarguable it seems to me appropriate that I should extend the time for bringing the proceedings which have now been brought, in which the same arguments were advanced, by way of judicial review.

Now that I have heard full argument it is clear to me that the substantive contentions in relation to Article 14, proportionality, rationality and the appropriate forum in which to raise these submissions fail. But I have come to a clear conclusion only after full argument and I see little point in those circumstances and, even a danger of hubris, if I underline my confidence in those conclusions by refusing permission. In these particular circumstances I shall grant permission, extend the time limit for bringing the judicial review proceedings, but refuse the application.