Housing law

Possession and privacy

In Kay v Lambeth London Borough Council; Price v Leeds City Council [2006] UKHL 10, the House of Lords reconsidered the effect on possession actions of the right to respect to a home conferred by article 8 of the European Convention on Human Rights, the right to respect for private and family life. Seven Law Lords heard the appeals, in which the House of Lords revisited its decision in Qazi v Harrow London Borough Council [2003] UKHL 43; [2004] 1 AC 983.


In Qazi, the defendant and his wife were joint tenants of a property owned by the claimant authority. The wife left the property and terminated the tenancy by serving a notice to quit. The defendant remained in occupation. The authority brought possession proceedings against him, which he defended on the ground that, by seeking an order for possession, the authority was acting in breach of his rights under article 8.


The House of Lords held (by a majority of three to two) that a landlord's contractual and proprietary right to possession could not be defeated by a defence based on article 8, even where the landlord is a public authority for the purposes of the Human Rights Act 1998.


After Qazi, the European Court of Human Rights [EHCR] gave its decision in Connors v UK [2004] HLR 52. The applicant and his family were gypsies who occupied plots on a caravan site owned by a local authority. The authority served notice to quit and brought possession proceedings. At trial, there was no consideration of any rights the applicants may have had under article 8. The European Court concluded at paragraph 95, that: '[T]he eviction of the applicant and his family ... was not attended by the requisite procedural safeguards, namely the requirement to establish proper justification for the serious interference of his rights, and consequently cannot be regarded as justified by 'pressing social need' or proportionate to the legitimate aim being pursued. There has accordingly been a violation of article 8 of the convention.'


Kay v Lambeth London Borough Council concerned occupiers of short-life accommodation, which was owned by the local authority. Initially, the authority licensed the accommodation to a housing association, which in turn let out the individual flats to the occupiers. Subsequently, the licence to the association was replaced by a lease. On termination of that lease, the authority sought possession on the basis that the occupiers' rights of occupation had come to an end. The occupiers argued that they had become tenants of the authority. In the alternative, they relied on article 8. The Court of Appeal held that they had not become tenants of the authority and rejected any argument based on article 8: [2004] EWCA Civ 926; [2005] QB 352. In addition, the court held that the decision in Connors did not affect the decision in Qazi.


Leeds City Council v Price concerned a group of gypsies who moved their caravans onto land owned by the authority. Two days after they moved onto the land, the authority took possession proceedings. The Court of Appeal held that the decision in Qazi, that the exercise of a proprietary right to possession does not infringe article 8, was not compatible with the decision in Connors, but that it was bound to follow the decision in Qazi because, where a decision of the ECHR conflicts with an earlier decision of the House of Lords, domestic courts must follow the decision of the House of Lords: [2005] EWCA Civ 289; [2005] 1 WLR 1825.


Given the views expressed by the Court of Appeal, leave to petition the House of Lords was granted in Price. As the court considered it to be incompatible with the decision in Kay, leave to petition the House of Lords was subsequently granted in Kay.


At the appeals in Kay and Price, 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). To the extent that Qazi may have decided otherwise, some qualification was required. The issue was justification under article 8(2).


Secondly, 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.


Thirdly, 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.


Thereafter, with regard to justification under article 8(2), there is a divergence of opinion between the majority (Lords Hope, Scott, Baroness Hale and Lord Brown) and the minority (Lords Bingham, Nicholls and Walker). The majority decision is summarised in the speech of Lord Hope at [110], 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 that 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 which enables the court to make the possession order is incompatible with article 8. In this situation, the county court, in the exercise of its jurisdiction under the Human Rights Act 1998, should deal with the argument in one of two ways - by giving effect to the law, so far as is possible for it to do so under section 3 of the 1998 Act, in a way that is compatible with article 8, or 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. The defendant should be permitted to do this provided that the point is seriously arguable.

The key point on which the minority 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.


In both cases, all seven members of the committee were agreed that the occupiers' appeals should fail. Coverage of the cases in the media has generally focused on Price because of issues surrounding gypsies. In fact, in Price, the appeal was readily dismissed on the basis that the recreation ground on which the defendants parked their caravans could not be their home within the meaning of article 8. The defendants had been on the site for two days and so they could not show the continuous links with the land that were necessary to establish that it was their home. In Kay, it was held that the occupiers had raised nothing that could sustain a defence based on article 8.


Two other points are of note. First, in Kay, the House of Lords rejected the occupiers' argument that they had become tenants of the authority. Secondly, the House of Lords also emphasised that it is for the national courts to decide how the 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. Therefore, the Court of Appeal in Price had been right to hold that it was bound to follow Qazi.


By Andrew Dymond, Arden Chambers, London