More from Strasbourg on possession and Article 8 – Nearly Legal
24 September 2012
BUCKLAND v. THE UNITED KINGDOM – 40060/08 – HEJUD [2012] ECHR 1710 – read judgment
The ECtHR’s recent decision in Buckland v UK demonstrates again how wonderfully delphic the subject of housing and Article 8 rights to private and family life has become.
In one sense, the outcome was fairly predictable because the case was determined by the UK Courts before the Supreme Court in Manchester CC v Pinnock established the principles of proportionality in possession claims.
The facts are fairly straightforward: Ms B and her family entered into a licence agreement with the Gypsy Council on 29/3/04 to occupy a plot on a caravan site in Port Talbot, Wales. Following allegations of nuisance and anti-social behaviour, the Council issued possession proceedings. The Judge, bound by Kay v Lambeth, found that the Council’s decision to seek possession was not unreasonable and he made a possession order. However, he found that the allegations were at the lower end of the scale and he postponed enforcement of the Order (under s.4 of the Caravan Sites Act 1968) until 24/11/06.
Ms B appealed to the Court of Appeal, who decided on 12/12/07 that the Court’s power to postpone under s.4 imported the requisite judicial scrutiny to claims brought under the Act and that the Act was within the margin of appreciation permitted to States under Article 8 ECHR. The Appeal was dismissed and Ms B left the site in May 2008.
Ms B complained to the ECtHR that she had been unable effectively to challenge the making of the possession order and that her eviction was disproportionate. The Court found that the judicial review grounds applied by the Court were insufficient to ensure the necessary Article 8 protection and that the power to grant 12 month suspensions of the order under s.4 provided inadequate procedural guarantees. Accordingly, Ms B was deprived of her home without the opportunity of having the proportionality of her eviction determined by an independent tribunal. Ms B’s complaint under Article 8 ECHR, the right to private and family life, was therefore upheld and 4,000 EUR non-pecuniary damages were awarded.
Comment
This case is particularly interesting because of the Separate Opinion of Judge De Gaetano. He scrutinises the classic formula:
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 light of the relevant principles under Article 8 of the Convention, notwithstanding that, under domestic law, his right to occupation has come to an end
and observes that the final part of the test might lead one (incorrectly) to conclude that the making of an Order terminating those rights disappears from the picture as far as Article 8 is concerned. This is not the basis on which the Court decided Buckland and it leads the Judge in turn to make these remarks:
In my view while it is perfectly reasonable to require that an eviction or repossession notice issued by the Government or by a local authority – both of which are normally under a public law obligation to provide accommodation for people within their jurisdiction – or possibly even by a private entity in receipt of public funds, should be capable of being challenged on the grounds of proportionality, when the landlord is a private individual the tenant’s right should in principle be limited to challenging whether the occupation – tenancy, lease, encroachment concession, et cetera – has in fact come to an end according to law. In this latter case the proportionality of the eviction or repossession in light of the relevant principles under Article 8 should not come into the equation.
The first point here is that the judge appears to take it for granted that Article 8 applies to claims brought by private landlords. However, once the possession order is made in favour of a private landlord, the applicant would appear to be prevented from raising Article 8 issues at the enforcement stage.
Secondly, the judge refers to private entities in receipt of public funds. This contains an echo of the point made by the CA in Weaver about housing associations (para.84). While it is likely to be somewhat of a stretch to fix private landlords in receipt of housing benefit with Article 8 obligations equivalent to those of public authorities in the context of the paragraph, the door is certainly open, for instance, to challenge possession proceedings brought against homeless tenants who have taken up a private tenancy in discharge of the homelessness duty.
This post by SJM first appeared on the Nearly Legal Blog and is reproduced here with permission and thanks.
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It seems there are first class licenses for gypsies and second class licenses for almshouse residents. Gypsies get access to the European court whereas almshouse residents remain outlawed.
Perhaps mercenary trustees should be advised to determine whether applicants for almshouses have gypsy blood in their veins before confirming appointments. Perhaps applicants, for their part, should conceal any such, against some future contingency.
We regard these iniquitous anomalies as yet another complication heaped onto the ramifications of Gray v Taylor. In the interests of all parties the licensor/licensee nexus cries out to be rationalised to that of landlord/tenant.
On a related matter: if officialdom via the courts is to assume that almshouse rent (‘service charge’ or whatever else trustees may care to call it) is universally reimbursed via housing benefit (which in fact is not the case!), it follows that almshouse charities are rendered ‘private entities in receipt of public funds’ (see Judge De Gaetano’s digression). This factor should automatically bring almshouse residents under the protection of the ECtHR. Or are we playing both ends against the middle here?
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Re: DNA and other samples -PACE 1984 S63 as amended S63D Protection of Freedom Act 2012 not withstanding the Margin of appreciation and derogations in Public interest (policy and security).
As regards possession orders, what about the rights of neighbours for peaceful enjoyment and their Art 8 rights; and Landlords rights when there is nuisance and other breach of contract- failure to pay rent. damages etc Does the goverment, local authority, utilities or private creditors void or limit any liabilty. Perhaps the ECtHR should rule on costs and damages resultant from such a judgement not to mention UK courts. Landlords suffer millions of pounds from adverse tenants actions and the courts fail to recognise it taking a one sided view.
Dear Stan, We have no way of knowing if DNA samples are deleted The method of doing so must be independent and transparent, after all, if the police have nothing to hide, they have nothing to fear.
De Gaetano sat on the follow up to Marper. It dealt with Art 8. We still have an (illegal under ECHR law) National DNA Database with 2 million innocent folks samples on. So I’d take De Gaetano’s dictum with a bucket of warm spit.