Housing law legal update

Housing practitioners may have thought that the House of Lords decision in Kay v Lambeth LBC [2006] UKHL 10, [2006] 2 AC 465, was the final word on the courts’ approach to a trespasser’s right to respect for the home under article 8 of the European Convention on Human Rights.

The Lords had already ruled on the issue in Qazi v Harrow LBC [2003] UKHL 43; [2004] 1 AC 983, and following concerns about whether Qazi was compatible with the European Court of Human Rights’ (ECtHR’s) decision in Connors v UK [2004] HLR 52, a committee comprising seven Law Lords was convened to hear the appeal in Kay. The recent decision of the ECtHR in McCann v UK (App. No. 19009/04), however, means that the issue will have to be addressed afresh.

In Kay, all seven Law Lords were agreed on certain points. First, a possession order in respect of someone’s home is an interference with the defendant’s rights under article 8(1). The issue was justification under article 8(2).

Second, where a public authority is claiming possession, in the vast majority of cases, the relevant domestic law will automatically supply the justification required. The proper balance between the competing rights of landlord and tenant will have been struck by Parliament, which is accorded a wide margin of appreciation in housing matters.

Third, an authority is not obliged to plead or prove that justification. It is sufficient for it to assert its claim in accordance with domestic law. Accordingly, it is for the defendant to raise any defence based on article 8.

With regard to justification under article 8(2), there was a divergence of opinion between the majority (Lords Hope, Scott and Brown, and Baroness Hale) and the minority (Lords Bingham, Nicholls and Walker). The majority decision is summarised in Lord Hope’s speech, with which the other members of the majority expressly agreed.

A defence that does not challenge the law under which the possession order is sought as being incompatible with article 8 but which is based only on the occupiers’ personal circumstances should be struck out. If the requirements of the law have been established and the right to recover possession is unqualified, the only situations in which it would be open to the court to refrain from making a possession order are:

- If a seriously arguable point is raised that the domestic law enabling the court to make the possession order is incompatible with article 8, the county court in the exercise of its jurisdiction under the Human Rights Act 1998 should deal with this argument by either:

(i) giving effect to the law, so far as is possible for it to do so under section 3 of the act, in a way that is compatible with article 8; or (ii) by adjourning the proceedings to enable the incompatibility issue to be dealt with in the High Court.

- If the defendant wishes to challenge the decision of a public authority to recover possession as an improper exercise of its powers at common law on the ground that it was a decision which no reasonable person would consider justifiable, he should be permitted to do so, provided the point is seriously arguable.

The key point on which the judges disagreed was the relevance of the occupier’s personal circumstances. The minority considered that such circumstances could be relevant, albeit only in wholly exceptional circumstances.

The facts of McCann are relatively straightforward. Mr and Mrs McCann were joint secure tenants of a three bedroom house. Mrs McCann left the home because of alleged domestic violence and obtained an ouster against her husband. She subsequently left the property because Mr McCann tried to force entry. She handed back the keys to the property and the authority provided her with alternative accommodation. Some time later, Mr McCann returned to the house and later applied to the authority for a mutual exchange.

At this point, the authority realised that the house was occupied. An officer visited Mrs McCann and asked her to sign a notice to quit, which she duly did. She was not advised as to the effect of the notice to quit and a week later she wrote to the authority asking to withdraw it. Subsequently, the authority claimed possession against Mr McCann on the ground that he was a trespasser.

Although Mr McCann had other (unsuccessful) arguments based on articles 6 and 14, his key argument rested on article 8.It was common ground that the house continued to be his home, notwithstanding that he had no right under domestic law to continue in occupation.

It was also accepted by the government that the effect of the notice to quit, together with the possession proceedings, was to interfere with the applicant’s right to respect for his home. Therefore, the issue was whether that interference was justified.

The ECtHR held that the interference pursued the legitimate aim of protecting the rights and freedoms of the authority to regain possession of the property and ensuring that the statutory scheme for provision of housing was properly applied. The question remained whether the interference was proportionate and thus necessary in a democratic society.

In analysing proportionality, the ECtHR relied on principles set out in Connors. In that case, the applicant was a gypsy who occupied a local authority caravan site. Following allegations of anti-social behaviour, the authority evicted him using a summary possession procedure which did not require them to prove the allegations.

The ECtHR upheld the applicant’s complaint of a breach of article 8 and held that the applicant’s eviction had not been attended by the necessary procedural safeguards, namely the requirement to establish proper justification for it.

The ECtHR rejected the government’s argument that the reasoning in Connors was to be confined only to cases involving the eviction of gypsies, or cases where the applicant sought to challenge the law itself rather than its application in his particular case.‘The loss of one’s home is a most extreme form of interference with the right to respect for the home. Any person at risk of an interference of this magnitude should in principle be able to have the proportionality of the measure determined by an independent tribunal in the light of the relevant principles under article 8 of the convention, notwithstanding that, under domestic law, his right of occupation has come to an end.’

The ECtHR also found that the procedural safeguards required by article 8 for assessment of the proportionality of the interference were not met by the possibility of judicial review because the judicial review proceedings ‘did not provide any opportunity for an independent tribunal to examine whether the applicant’s loss of his home was proportionate… to the legitimate aims pursued’.

It was also emphasised that it was immaterial whether or not the applicant’s wife understood or intended the effects of the notice to quit. The application was allowed.

‘Under the summary procedure available to the landlord where one joint tenant serves a notice to quit, the applicant was dispossessed of his home without any possibility to have the proportionality of the measure determined by an independent tribunal. It follows that, because of the lack of adequate procedural safeguards, there has been a violation of article 8 of the convention in the instant case.’

In the ECtHR’s view, any defendant should have the right to advance arguments based solely on whether it is proportionate to grant possession in the circumstances of his case. It is to be noted, however, that the court considered that this would not have ‘serious consequences for the functioning of the system or for the domestic law of landlord and tenant’. Referring to the views expressed by the minority of the House of Lords in Kay, it considered that it would only be in very exceptional cases that an applicant would succeed in raising an arguable case that would require a court to examine the issue; in the great majority of cases, an order for possession could continue to be made in summary proceedings.

In considering compensation for the applicant, the ECtHR observed that ‘it is far from clear that, had a domestic tribunal been in a position to assess the proportionality of the eviction, the possession order would not still have been granted’. (This is a surprising observation given that the county court trial took place before Qazi and the judge found that a possession order was not justified.)

In Kay, the House of Lords emphasised that it is for the national courts to decide how principles expounded in Strasbourg should be applied in the context of national legislation. Subject to exceptional circumstances, the ordinary rules of precedent apply.

Judges should review convention arguments and if they consider a binding precedent to be inconsistent with Strasbourg authority, they may express their views and give leave to appeal. Accordingly, for the present, it seems that Kay must be followed in the domestic courts.

Nevertheless, it is clear that the House of Lords will have to address the application of article 8 to possession proceedings once more. Doubtless, it will take the opportunity to do so in the forthcoming appeal in Doherty v Birmingham CC.

Andrew Dymond is a founder member of Arden Chambers and an editor of the Housing Law Reports and Arden & Partington’s Housing Law