Defence Estates v JL & Anor

MR JUSTICE COLLINS: This claim was commenced in the Leeds County Court on 26 June 2007. By it, the claimant, which is responsible for managing property belonging to the Ministry of Defence (including residential property), to house members of the Armed Forces and their families, seeks possession of premises in Leeds in which the defendant and members of her family are living, and the claimant also seeks damages for use and occupation.

On 3 September 2007 a defence and counterclaim were served. The defence asserted that it was unreasonable, and so unlawful to have brought the claim for possession, and it would constitute a breach of the defendant's Article 8 rights under the European Convention on Human Rights. It was said that the defendant recognised that only the High Court could deal with that matter, and so an order for transfer was sought. The basis of the claim was that no assured tenancy could be made and so there was no protection against eviction. The most that the court could do was to impose a six-week suspension on any possession order. The reason for that is because the tenancy comes within paragraph 11 of Schedule 1 to the Housing Act 1988, which lists tenancies which cannot be assured.

Paragraph 11(1) covers tenancies under which the interest of the landlord belongs to Her Majesty in right of the Crown or to a government department or is held in trust for Her Majesty for the purposes of a government department. As a result, by an order of 22 November 2007, HHJ Grenfell transferred the case to the Administrative Court.

The law is by no means straightforward, there being three decisions of the House of Lords and a helpful recent decision of the Court of Appeal which seeks to explain and give guidance in the way to apply those House of Lords decisions.

The history of this case can be shortly stated. The first defendant was married to an army officer. He was a alcoholic and had been violent to her, and had abused one of her two daughters. He resigned in July 1989 following a court martial which found him guilty of ungentlemanly conduct. The Army thereafter no longer had any duty to house the first defendant, but on compassionate grounds, because of her husband's misconduct towards her and the family, it was arranged that she should move to Leeds where the children attended a boarding school. They were twin girls aged 13 at that time.

The premises in Leeds where they were housed were said to be temporary until she could obtain housing through the Council. She herself suffers ill-health. Her health has deteriorated over the years and she is now registered disabled. She has to use a wheelchair because she has various conditions which I do not need to itemise. Her two daughters live with her: one suffers from some mental health problems; the other, who is a carer for her mother and her sister, has an 11 year-old son who suffers from Crohn's disease. The difficulties in finding suitable accommodation for the family are all too obvious, and it is clearly important that they should be kept together.

There was requested an anonymity order so that the family should not be identified, particularly because of the damaging effect upon one of the daughters on the defendant herself, and on her young granddaughter. I made that order, and I would ask therefore that any report of this case be on the basis that their identities are not disclosed, and obviously the actual address is not disclosed, although there is of course no reason not to refer to Leeds, if that is thought appropriate, Leeds being a relatively large city.

They moved in in September 1989. The defendant was informed that she was regarded as what was called an irregular occupier. The licence to occupy was said to be terminated on 26 September 1990. Eventually court proceedings were taken, and a possession order was granted in July 1993. There were attempts then to find alternative accommodation. An offer was made but was turned down, as it was said to be unsuitable for wheelchair use. There was some correspondence in respect of this.

On 19 July 1994 a letter was sent from the headquarters of the Eastern District of the Army stating that the defendant was ill-advised to reject the offer because she had removed herself from the Leeds Council priority housing list, and the only alternative, it was suggested, was a possibility of renting or purchasing in the private sector. It was asserted that she had been rejecting all attempts to provide help and advice, and in the absence of a specific plan to obtain alternative accommodation, there was no alternative but to apply for a warrant of possession. That was a letter sent to her then solicitors.

In December 1994, a further letter was sent indicating that the Army would do everything they could to help in a difficult situation, but asking for a medical report, and an indication of what steps would be taken. In fact, nothing appears to have happened. The defendant and his family remained in occupation.

In September 1996, there was a general overhaul by the Ministry of its property and the way that it was to be managed. This involved a sale and lease back to an organisation called Annington Homes. In October 1999 it was said that possession was required as this particular dwelling was surplus to requirements for the Ministry, and would be handed back to Annington Homes. Thus, on 4 November 1999 a fresh notice to quit was served. By now of course the defendants had been living in this house for some ten years, and the claimant had done nothing beyond what had been done back in 1993 and 1994 to seek either to find or to help them to find somewhere else or take steps to evict.

Following that, there was a further delay, and on 13 July 2001 a warrant for possession was sought based on the order made back in 1993. This was refused by the court because, it was said, not surprisingly, that a fresh tenancy had been granted. Again, nothing was done by the claimant until November 2005 when a notice to quit was served. It was appreciated that there was a need to act sympathetically.

There is a statement on behalf of the claimant by a Mr Christopher Duke, who is the Assistant Director of Housing, and has worked for the claimants since 1982. He says this in relation to the service of the notice to quit in 2005:

He says that because of the increase in need for defence housing, and because the defendant appeared from the records as an irregular occupier, he was instructed to recover possession. He recognised that there was a duty to consider if and how the claimant could assist the defendant through the process of recovery of possession. He conducted a review to ascertain whether she was prepared to make efforts to help herself to find alternative accommodation. It was then for the first time that he discovered who actually was living at the premises, and the health problems and the care that was being carried out by one of the two daughters.

He says that, in April 2007, he had a meeting with the Leeds Social Services in order to ensure that the Council would actively assist with the problem of finding somewhere to live. The note of the meeting records:

It is apparent that, as time passed, there was a concern expressed by the claimants about the presentation of the efforts to evict the defendant. It was appreciated that there could be matters raised which would put the claimants in something of a bad light. It was said in a note made by Mr Duke that it was recognised, importantly, that Leeds City Council would only deal with the defendant and potential need for specialist housing as a priority if an order for possession was granted against her. The Council would have a duty under Part 7 of the Housing Act because the claimant and her family would be homeless if evicted, and clearly would be unintentionally homeless. The obligation under the Housing Act would arise because equally it was apparent that the defendant was a person in priority need, having regard to her disabilities and also the problem in relation to her daughter and her grandson, who were part of the family living with her. But the Housing Act duty only arises if there is a threat of homelessness, and the period within which the duty begins to arise is 28 days from the actual threatened eviction. Thus, there is no positive duty upon the City Council to do anything until that 28-day period starts to run. Of course, once there is a possession order, then clearly steps would have to be taken.

At the end of the note to which I have referred, Mr Duke, under the heading "Presentational Issues", says:

That letter stated that the Ministry intended to take legal action through the County Court against the defendant, who was seriously in arrears with rent amounting to in excess of £6,200. Notice to quit had been issued, but she still remained in possession. She was disabled and now shared with her daughter and grandson. She had not allowed the Ministry to carry out any maintenance to the property for a number of years, and there were serious concerns as to the condition and safety of the property, and that attempts would be made with the City Council to assist in sourcing alternative and suitable disabled accommodation, but the Member of Parliament should be made aware that in a previous attempt to secure possession, the defendant had refused the offer from Leeds of suitable accommodation. It was said that the possession was required for operational reasons.

That approach and that letter was, to say the least, unfortunate because it was not accurate. The alleged rent arrears in fact had arisen because the claimants had refused to accept any payment, taking the view that, if they did, they would create a tenancy. Of course, they could have treated her as a tolerated trespasser, but to suggest that that was a basis for seeking possession was, to say the least, not entirely accurate.

They also asserted that she had not allowed the Ministry to enter and carry out any maintenance. That was a matter which was very much in issue and the defendant denies that that indeed is the true position. Finally, she refused the previous offer of accommodation because the property which was on offer was not suitable. That at least was her contention. So again there was an issue about that.

It is apparent that there is an interference with the defendant and her family's Article 8 rights. There was a directions hearing held before Wilkie J on 29 September 2008, and an amendment to the defence and counterclaim reflected the most recent decision of the House of Lords. Wilkie J set out a usual timetable for the service of evidence, skeleton arguments and so on, but he refused a request for an expert report on the defendant's care needs. There was an attempt to appeal against that refusal. That was refused on 16 April 2009. Since there is no issue but that the claimant is disabled and thus would be in priority need, it seems to me that an expert's report would not help so far as this claim is concerned. It clearly would help when the question of seeking suitable accommodation arises and will possibly be material for Leeds Council to take into account when it has to decide that question.

The re-amended defence and counterclaim also raised the disability equality duty under section 49A of the Disability and Discrimination Act 1995 (as amended). Section 49A, so far as material, provides:

As will become apparent, it does not seem to me that that adds anything to the defendant's case. The Ministry recognises that she is disabled and has recognised at all material times that they must assist, so far as they are able, in helping her to find suitable alternative accommodation, again with the assistance of the City Council. But to suggest that section 49A enables someone who otherwise would fail to have any defence to a possession order nonetheless to remain is to take that much too far.

Unhappily, the law is, despite three relevant decisions of the House of Lords, far from as clear as it should be. It is apparent that public law defences based on alleged irrationality of a decision to seek possession can be raised before the County Court as a defence (see, for example, Wandsworth LBC v Winder [1985] AC 461). But what is less clear is what can amount to such irrationality. The issue was first raised before the House of Lords in Harrow Borough Council v Qazi [2004] 1 AC 983. All I need to say about that case is that it decided that Article 8 could not be relied on to defeat a proprietary or contractual right to possession. That was a decision by a three to two majority.

However, shortly thereafter, the European Court of Human Rights in Connors v the United Kingdom [2005] 40 EHRR 185 cast doubt upon the correctness of that approach. The Connors case concerned a gypsy who had had no chance to challenge the basis of the decision to evict, which was in that case alleged misconduct. That inability was said by the European Court to be wrong, and to render the interference with his Article 8 rights disproportionate. However, in Blecic v Croatia [2004] 41 EHRR 13, the European Court of Human Rights recognised a wide margin of appreciation in enabling a member state to apply a particular housing policy. The facts in Blecic were that the applicant had held a specially protected tenancy in a publicly owned flat in Croatia. In July 1991, she went to stay with her daughter in Rome for the summer leaving her furniture and belongings in the flat. By the end of August the armed conflict had escalated, and from mid-September the town in which she had lived was exposed to constant shelling and the supply of water and electricity was disrupted. In October 1991, her pension was stopped and she lost the right to medical insurance. The following month her flat was broken into and occupied by a family. She decided, because she had no means of subsistence, had no medical insurance, and was in poor health, to stay in Rome and did not return to her home town until May 1992.

In February 1992, the local authority had brought an action against her for termination of her tenancy on the ground that she had been absent for more than six months without justification. The court terminated the tenancy, finding that her reasons for non-use were unjustified. That judgment was quashed on appeal, and the case remitted to the First Instance Court, but eventually the Supreme Court ruled against her and the Constitutional Court held that her rights had not been violated. The court agreed that her rights had not been violated, and the basis upon which that decision was reached is set out in paragraphs 65 and 66 of the judgment, which read as follows:

Note the use of the adverb "manifestly" when describing what was disproportionate. That suggests that the court was applying a somewhat higher level than the normal proportionality test applicable in these cases.

Following Connors in particular, the matter was reconsidered by the House of Lords in Kay v Lambeth [2006] 2 AC 465. There were in fact two cases heard together: Kay v Lambeth and Leeds City Council v Price. The facts of Kay are more material to the circumstances of this case. The other case, Price, involved a gypsy. The headnote indicates the facts of Kay:

The House of Lords' decision was by a majority of four to three. It was decided, so far as material, that the right of a public authority landlord to enforce a claim for possession under domestic law would, in most cases, automatically supply the justification required by Article 8(2) for an interference with the occupier's right to respect for his home. The public authority was not required to plead or prove justification in every case, and the courts were to assume that domestic law struck the proper balance of the competing interests and was compatible with Article 8. A challenge to the making of an order could be raised in the possession proceedings in the County Court, so far as its jurisdictional limits permitted it, if the defendant could exceptionally show a seriously arguable case that the relevant domestic law was incompatible with the Convention, but that, and this was the majority holding, where the requirements of the law had been satisfied and the right to recover possession was unqualified, no challenge based only on a defendant's individual circumstances was permissible.

Lord Bingham, who was in fact, in the end, one of the minority, sets out in paragraph 22 at pages 488 and 489 the various relevant Strasbourg decisions, in particular Connors and Blecic to which I have already referred. A distinction drawn between Connors and Blecic was that in the Connors case no opportunity had been given to the applicant to challenge the matters relied on, which were alleged to amount to misconduct which justified bringing to an end his occupation; whereas in Blecic the applicant laboured under no such disadvantage and the court decided clearly that the facts justified the decision which had been reached by the court.

Lord Bingham, in paragraph 29, having considered all these various authorities, said this:

The schedule to the Act, which sets out the various cases in which no security of tenure can be granted, strikes the necessary balance, and it would only be an exceptional case that, on its facts, enabled a defendant to assert successfully that, notwithstanding the power to evict, that power should not be exercised.

In paragraph 38 on page 495 Lord Bingham says this:

The leading judgment of the majority is that of Lord Hope. At paragraph 66 to 67, he said this:

Lord Hope expressed agreement with Lord Scott, Lady Hale and Lord Brown, who with him formed the majority, but he went further and indicated that a challenge which was not to the law under which the possession order was sought, but was based only on the occupier's personal circumstances should be struck out. It would need a seriously arguable case of irrationality to permit any claim to go forward.

Then in paragraph 114, Lord Hope said this:

Article 8, of course, does not confer a positive right to be housed, merely a right not to lose housing unless that loss is compliant with Article 8 rights. Lord Brown recognised that Strasbourg jurisprudence required some qualification on the Qazi principle, but he could not accept that it required consideration of an Article 8 defence every time it was raised. Although Article 8 was clearly engaged in every home repossession case, its requirements would be satisfied provided always, first, that the substantive domestic law under which the order was sought struck an acceptable balance between the competing needs and right at stake, and second, that the law was properly applied by the domestic court with the occupier being given a fair opportunity to invoke any defence available to him under it.

Finally, in paragraph 203 Lord Brown said this:

So that seemed to indicate that there were likely to be very few cases where the Article 8 defence could be raised with any hope of success. But this was not the end of the House of Lords' decision-making in this context. The third of the cases is Doherty v Birmingham City Council [2008] 3 WLR 636. That was another gypsy case, and the question was whether the definition of a protected site in section 5(1) of the Mobile Homes Act 1983, which excluded gypsies from statutory protection, was inconsistent with the Convention. The answer to that was "no", subject to possession being a course which no reasonable person could consider to be unjustifiable. That again was a decision by a majority of three to two, and the question that seems to have been at the forefront was whether the test should be proportionality or only the higher test of irrationality. The decision by the majority was that it was the latter.

The leading speech of the majority was given by Lord Hope (paragraph 33). He said this:

He then considered the effect of section 6, in particular 6(2)(b) of the Human Rights Act 1998. That I should cite because argument based upon it has been raised by Mr Cottle. Section 6 provides:

In paragraph 39, Lord Hope dealt with section 6(2)(b), and said:

Before going further I should go back to what Lord Hope said in Kay in paragraph 110. In paragraph 110 he referred to what he described as two gateways, that is to say-

In Doherty, Lord Hope dealt with gateway (b) -- (a) very clearly is not applicable in the circumstances of this case -- and indicated that it was designed to leave open the possibility of a challenge on public law grounds that the public authority's decision to bring the claim is so unreasonable as to be unlawful. He elaborated on that point, the point being of course that once the matter gets to court the court has no option: it is caught by section 6(1) because the law requires a possession order to be made. The only discretion that exists is that of the authority in question, in this case the claimant, to seek possession. It does not have to exercise the power that rests in it to seek possession. But if it does decide to do so, then it can, as the law appears to have been established by the majority in Doherty, do so unless it can be said that its decision to exercise those powers is Wednesbury unreasonable.

The minority, and I refer for example to Lord Mance in paragraphs 162 and 163 (I do not need to read them in detail), indicated that he regretted that it was not possible to modify gateway (b) generally so as to allow express regard to be had to Human Rights Convention principles in relation to any defence raised against a public authority, whether under Wandsworth or in the Qazi/Connors/Kay situation, or in circumstances that arose in the case of Doherty. He was not persuaded that any significant problems would or need arise. One of the problems that was suggested was that it would be difficult for County Court Judges to apply a consistent approach if they had to consider proportionality in the circumstances of every case.

I am bound to say that I very much see the force of Lord Mance's and the minority's approach in Doherty. Surely most people would consider that it was unreasonable to take action which constituted a breach of an Article of the Human Rights Convention. Nevertheless, the court at Strasbourg has clearly indicated that the test is one that requires that it be manifestly disproportionate, and that is certainly a higher test than merely disproportionate. But, again, there is no reason in principle, as far as I can see, why that test should not be as easily applied by County Court Judges as the test of irrationality. It would be for the judge to consider that matter on the facts of every case in which it was raised.

However, I am not able to approach the matter in that way, because the decision of the majority in Doherty's case is binding upon me, and the Court of Appeal has, in a decision reached on 3 March 2009, given guidance as to the correct approach. The case in question is Doran v Liverpool City Council [2009] EWCA Civ 146. That again was a gypsy case. But the challenge, if any challenge can be made, will be a challenge to the decision to bring the possession proceedings, not to the possession proceedings themselves. Toulson LJ gave the lead judgment in that case. In paragraph 48 onwards he said this:

He then went on to consider gateway (b) and the legislative scheme. He made the point that when it came to judging whether a Council had acted in a way which no reasonable person would have done, the existence of the court's powers of suspension was an important factor. In the context of this case, a six-week suspension maximum does not seem to me to provide a very substantial protection to the defendant.

What is suggested in this case is that it was irrational to bring these proceedings because of a failure to appreciate the full circumstances, including the presence of the daughter with her disability. But, as it seems to me, there is no obligation on the authority in question to make that sort of enquiry. In any event, it could not in the circumstances have affected the decision since personal disabilities will not generally provide a proper basis for declining to take proceedings -- at least that is the situation as a general rule, albeit there may be cases where it would be incumbent upon the relevant authority to assist, insofar as they are able, in seeing that alternative accommodation could be provided.

In paragraph 67 in Doran, giving practical guidance, Toulson LJ observed:

There is no doubt, as I have indicated from the history of this matter, that the claimants have not acted in a way which lives up to proper standards of good administration. There have been substantial delays for no good reason. Then there were attempts to rely on arrears of rent and inability to carry out repairs which were designed to make the decision look good in public. But despite Mr Coppel's arguments, I see no reason to reject Mr Duke's evidence of the present need.

The Secretary of State for Communities and Local Government has been made a second defendant because of the arguments raised in relation to the compatibility of the provisions, and he has produced a statement in which he sets out the thinking that has led to the various provisions that are made under the Housing Acts in relation to aspects of general housing management in the social housing sector. He makes the point about the inability to provide security where the tenancy is one coming within what is now paragraph 11 of Schedule 1 to the Housing Act. He refers to what was said back in 1954 in relation to non-residential properties, namely that government departments were in a different position; they were not landlords to any great extent, and they let property because it was needed for the purpose for which it was acquired or because the letting was in itself a means of carrying out statutory functions. In fact, the Ministry of Defence has the largest amount of residential properties held by any Government department, and that is because accommodation needs to be provided for a large number of service personnel, and there is a need to retain flexibility in the use of such properties for obvious reasons: because of the importance of being able to deploy and accommodate members of the armed forces quickly and in accordance with operational requirements.

It follows, and Mr Cottle recognises this, that the claimant cannot stay in this property forever. She cannot have security. But, having regard to the history, it seems to me that the claimants must assist in the finding of suitable alternative accommodation. Of course, they accept that they are not in the business of turning people out into the streets, but Leeds have now to undertake a homelessness duty. The problem, so far as the defendant is concerned, is that she fears upheaval. She has no wish to be moved to temporary accommodation, which would have not only an adverse effect upon her but also upon her daughter, who has apparently sadly already shown suicidal tendencies. Possession though must in due course be attained.

The question is, no doubt, what in the circumstances "due course" means. One has enormous sympathy, but the court cannot intervene to prevent possession being given on the basis of such sympathy alone.

I should add one further matter. If a defence is raised which challenges the rationality of the decision to take proceedings, it may well be that for example where misconduct is relied on as a basis for removal, or there is an issue as to the facts which were or ought to have been known to the individual claimant, it will usually be difficult for a court to decide that the decision, based as it was upon partial information, was one which was unreasonable. After all, the authority is entitled to act upon what is known to it, provided of course that it acts reasonably in all the circumstances.

What then is the point of the County Court deciding the facts which are unlikely to show that the decision itself was unreasonable, but may indicate that there would be a disproportionate result if an immediate possession order were obtained? The court cannot, because of section 6(1) of the Act, and indeed following the approach of the House of Lords as explained by the Court of Appeal, refuse to make a possession order, and the maximum suspension is one of six weeks. However, as it seems to me, there is a value in such a case in the court finding facts, because if it finds facts which persuade it that it would be disproportionate or unreasonable because of what comes out in the court hearing to evict, what it can do is to give an indication of its views, and in those circumstances, although suspension cannot be beyond six weeks, no doubt the decision to seek an order if the individual does not leave after the six weeks can be challenged. The actual eviction can be challenged then on the basis of the facts found by the County Court in an appropriate case. That is the value of the factual issue being decided by the County Court, even if it does not in the end lead to a decision that to take proceedings was irrational.

Coming back to the facts of this case, the City Council will now have to consider the question of rehousing. I fully appreciate and understand the concerns of the defendant that there should not be temporary accommodation. Although I recognise that there are potential problems, for example it would not be normally accommodation that was formally regarded as suitable or approved by Leeds, in the special circumstances of this case, it may be possible that she is allowed to remain where she is, it being regarded as the temporary accommodation provided by the Council while it seeks to carry out its duty to find permanent accommodation. Whether or not that is something which can be done remains to be seen, but the reality is that the defendant now must co-operate in the attempts to find her and her family alternative accommodation. She has no right to remain where she is, and there is no question but that the need of the Ministry to have available accommodation, including this accommodation for their purposes, is one which overrides the rights of the defendant under Article 8, or indeed any other Article of the European Convention on Human Rights. So much is clear from the approach of Strasbourg in Blecic, and from the decisions of the House of Lords and the Court of Appeal to which I have referred.

In those circumstances, I have no option but to make an order for possession in favour of the claimants. So far as payment is concerned, clearly there should be payment of what can be regarded as being profits or as a tolerated trespasser, or however it is described, but payments will not create any further tenancy. What I am not going to do is to make any order which enables the claimant to recover damages. Those amounts, by their own fault, were not paid. Thus, the claim for damages is dismissed, but there will be an order for possession.

It did occur to me whether I ought to make a 28-day order in order to trigger immediately the obligations of Leeds, but I am content to make a six-week order if the defendant would prefer that, and I would hope that Leeds would appreciate that, albeit the 28 days has not started, this is a case where clearly they are going to have to exercise their obligations, and the sooner they start to do so the better. I cannot of course force them to take action which the law does not require them to take.

Mr Cottle, has anything happened in the meantime since we had this hearing with Leeds? Have any steps been taken?

MR COTTLE: No, we have not had any indication from Leeds that that would regard the accommodation as temporary accommodation.

MR JUSTICE COLLINS: Of course, but my understanding during the course of argument was that they did not rule that out as a possibility having regard to the history of this case, provided of course it was not for too long a period.

MR COTTLE: My Lord, we have not got anything to report.

MR JUSTICE COLLINS: I think I will just simply leave that open. I have given my indications.

MR COTTLE: My Lord, I would rely on the occasions on which you clearly said, if at all possible, a move to temporary accommodation should be avoided. That is the most important part that I rely on, obviously.

MR JUSTICE COLLINS: That is what you put forward on behalf of the claimant and her evidence went to that, and I see nothing to contradict that.

MR COTTLE: We say that would be unacceptable. My Lord, while I am on my feet, there were a couple of references to 6(2) where you referred to 6(1).

MR JUSTICE COLLINS: Did I?

MR COTTLE: There were a couple. You said as a result of 6(1) they could not, but it is 6(2) that my Lord was referring to.

MR JUSTICE COLLINS: I am sorry, I will correct that.

MR COTTLE: And also there was a point about three gateways when there were two.

MR JUSTICE COLLINS: You are absolutely right. The trouble is I prepared this rather a time ago, and as you will appreciate --

MR COTTLE: It may be easier for my Lord, if we get the transcript, for us then to have an opportunity -- the only other point I am concerned about --

MR JUSTICE COLLINS: I will get a transcript to correct.

MR COTTLE: That would be the easiest way, probably. There was one point where there was a reference to the House of Lords' finding whether section 6(5) was inconsistent with whether or not -- section 5(1), sorry -- was inconsistent with Convention principles, and you said the answer was "no", and my understanding was that some of their Lordships were inclined to grant a declaration.

MR JUSTICE COLLINS: I know, but the majority said "no", I think.

MR COTTLE: My Lord, it was only on those points.

MR JUSTICE COLLINS: This is one of the problems with this case, we have three House of Lords' decisions which have left the law frankly in something of a mess.

MR COPPEL: My Lord, we apply for our costs of the action. The defendant is legally aided, so any costs order would not be enforced without leave of the court.

MR JUSTICE COLLINS: If you really want such an order -- are you really applying for costs?

MR COPPEL: Yes, my Lord. Certainly I have heard what my Lord has said about the delay.

MR JUSTICE COLLINS: You have not behaved very well.

MR COPPEL: My Lord, the delays in the matter -- as I submitted during argument, yes, we accept they were unfortunate and should not have occurred, but on the other hand they were to the benefit of the defendant.

MR JUSTICE COLLINS: Yes and no. That is not entirely the case because the longer she lives there and has put down roots and made her home there, the more difficult it is to move, particularly in the light of the various disabilities.

MR COPPEL: My Lord, it has been open to her at any stage to make efforts to move, but we know she has not done so since 1993. As to the point about rent and presenting non-payment of rent as a reason, that was not in the event the reasons which were relied on and have not been relied on in these proceedings.

MR JUSTICE COLLINS: It is not something that ought to have been done.

MR COPPEL: So, my Lord, whilst I accept that the references in the interim correspondence should not have been made, we have not attempted to rely before your Lordship on any grounds such as that.

MR JUSTICE COLLINS: So I should think.

MR COPPEL: Indeed. But on the other hand, my Lord, the defendant has persisted with the defence of this claim to the bitter end, notwithstanding --

MR JUSTICE COLLINS: Mr Coppel, you are entitled to an order for costs, and you are entitled to an order on the usual terms, not to be enforced et cetera. Mr Cottle, you cannot resist that as a matter of principle, can you?

MR COTTLE: No, my Lord.

MR JUSTICE COLLINS: Whether it is enforced ever is another matter.

MR COTTLE: That is right. It is their assessed costs, and then determination of liability is postponed.

MR JUSTICE COLLINS: Mr Coppel, I cannot refuse the usual order. You can have it, and you of course need the usual legal aid order.

MR COTTLE: Detailed assessment.

MR JUSTICE COLLINS: Yes.

MR COTTLE: I am grateful, my Lord.

MR STILITZ: My Lord, I should make it clear on behalf of the Secretary of State that we do not seek any consequential orders.

MR JUSTICE COLLINS: I did not think you would do.

MR COTTLE: My Lord, there is one further matter. As you are aware, Laws LJ turned down our permission application and that was in relation --

MR JUSTICE COLLINS: That was interlocutory really.

MR COTTLE: That was in relation to Wilkie J's ruling. The point about the assessment of what our care needs would be was to make the point that the temporary accommodation would not be appropriate, and my Lord has found --

MR JUSTICE COLLINS: This is a matter which I think, as I said, you really raise with Leeds, and you can copy it to the claimants in seeking to --

MR COTTLE: My Lord, there was not much surprise in the outcome of this case because my Lord was fairly clear in indications a the time, and so I hope it is not impertinent that I had prepared grounds of appeal. It is much better, should it go higher, that the higher court has your views on them. If I may hand them up?

MR JUSTICE COLLINS: Certainly.

MR COTTLE: My Lord, it will not take you long to cast your eye over of the first one.

MR JUSTICE COLLINS: You have shown this to the other side?

MR COTTLE: That is right, yes. (Pause)

MR JUSTICE COLLINS: I think, Mr Cottle, if you want to try and pursue those, you better pursue them in the Court of Appeal. I am not going to give permission. I think the law, so far as Doran has construed it, is relatively clear, and I do not think your disability discrimination point gets you anywhere, and you are looking at it the wrong way round. It is hardly possible to wait until suitable alternative accommodation is available when there is no obligation upon anyone to provide the suitable alternative accommodation.

MR COTTLE: That is the point.

MR JUSTICE COLLINS: The law is the other way round, and that is why I said that the claimants ought to co-operate in -- and I am sure they will; they have said they will -- in helping you obtain the alternative accommodation, but the law says it is the local authority who must provide it. But I do emphasise, and this is desperately important from your client's point of view, that she must co-operate, because if she does not, she will find herself having the worst of all worlds because there will then be no excuse really for her and no defence to being effectively forcibly evicted. I hope it does not come to that, and I am sure she will be given the most sensible advice.

MR COTTLE: My Lord, I do not want to take the time of the court any further, but just to make it absolutely clear, from my point of view the submission is, with respect to the court, that Doran and Doherty are decided under the umbrella of an incompatible legislative regime, hence section 6(2) immunises the authority from any attack under section 6(1) because section 6(1) clearly does not apply. We are saying there is nothing in the inability to grant an assured tenancy or an inability to grant a secured tenancy that prevents them from acting proportionately in whether or not they have to evict --

MR JUSTICE COLLINS: That is quite right.

MR COTTLE: That is the substantive point for the Court of Appeal.

MR JUSTICE COLLINS: I see. I think that is a bold point in the light of the House of Lords, but there we are.

MR COTTLE: So be it, my Lord.

MR JUSTICE COLLINS: I have some sympathy with that because I think, as I said, most people would regard it as unreasonable to do something which is -- and I emphasise "is" -- a breach of human rights.

MR COTTLE: My Lord, yes. Thank you very much for the time and consideration.