Housing, Article 8 and A1P1 in the Supreme Court

14 November 2014 by

mapmainSims v Dacorum Borough Council [2014] UKSC 63 – read judgment 12 November 2014 and

R (ota ZH and CN) v. LB Newham et al [2014] UKSC 62 – read judgment 12 November 2014

A brace of cases showing the limited role which Article 8 and Article 1 of the 1st Protocol has to play in housing law, so heavily regulated by a combination of statute and contract law. The human right protections conferred, as we shall see, are mainly procedural.

The contract and property issues are well illustrated by the case of Sims. Mr and Mrs Sims had lived in a council property, until Mrs Sims left, she said as a result of her husband’s violence. For her own housing reasons she sought termination of their periodic secure joint tenancy by unilateral notice. Her husband, as the other joint tenant still living in the property, maintained in response to possession proceedings that he was entitled to remain there as a sole tenant; anything else was inconsistent with his Article 8 and A1P1 rights.

The effect of such termination had already been settled at common law in Hammersmith and Fulham LBC v. Monk [1992] AC 478.  A periodic joint residential tenancy is terminated automatically, if one joint tenant, without the concurrence of the other joint tenant, or tenants serves a notice to quit on the landlord.

Mr Sims said that English law was required to recognise that he had a sole tenancy of the property as his home. The effect of  Monk was to destroy the legal rights of Mr Sims in the secure tenancy of his home without giving him any opportunity to participate in process of service of the notice and its termination of the joint tenancy.

The Court of Appeal (see Rosalind English’s post here) had been robustly against. Mummery LJ had thought any appeal was unarguable. He could not see any point in

 the expenditure of yet more public funds (on both sides) on a repeat of this debate before five (or even more) Justices of the Supreme Court of the United Kingdom.

Well, the appeal from the CA was heard by 7 Justices. But they were not a great deal more impressed than the CA was.

The Sims’ tenancy expressly recognised that, if one tenant terminated, it was up to the Council to decide whether the other tenant should stay. So the argument under A1P1 ran into this difficulty. The SC endorsed the Council’s submission that the loss of Mr Sims’ property right

is as a result of a bargain that he himself made.

If you are talking property rights (which is what A1P1 is about) this has to be the right analysis. And it could not be said to be irrational to let the Council decide whether to let Mr Sims stay. The District Judge had examined all the arguments one way and another, when deciding whether the Council in seeking possession was or was not reasonable and proportionate in its actions.

The Article 8 issue was not quite as straightforward. [21] of the judgment sets out helpfully the duties of the Council and courts when met with an argument about whether to make a possession order:

So far as Mr Sims’s case on article 8 is concerned, there is no doubt but that he was entitled to raise the question of the proportionality of Dacorum’s pursuit of the claim for possession of the house in the light of Pinnock v Manchester City Council [2010] UKSC 45….and Hounslow LBC v Powell [2011] UKSC 8…, as explained by Lord Hodge in R (CN) v Lewisham LBC [2014] UKSC 62, paras 58-60 and 63.

But this in the end got Mr Sims nowhere. The judge at first instance had concluded that the Council’s “careful decision-making process amply accorded with article 8.1 [and] that the decision that the Council made was one to which it could reasonably have come”. She then said that “[h]aving reviewed all the relevant factors myself, in my judgment it is lawful and proportionate to make an order for possession in this case”. And from that essentially factual conclusion it was very difficult to appeal. Against him also stood (i) the fact that the possibility was raised in his tenancy and (ii) he had the protection of a court reviewing the Council’s decision-making process.

So Mr Sims’ appeal was dismissed.

The ZH and CN case

These claimants (in judicial review proceedings)had a further obstacle in seeking to stay in their current housing – the Council had not gone to court to seek possession. However their housing status differed. They previously had said to the Council that they fell within the protection against homelessness, and were granted temporary (privately owned) accommodation whilst the Council decided whether they in fact qualified for such protection. In due course, the Council decided that they did not qualify, and then sought to evict them. It said it could do that without going to court. That was the first issue which arose. The Court (5-2) said that the Council was right, in that it did not have to go to court. It all turned on a highly technical argument about the meaning of “let as a dwelling” in legislation concerning protection against eviction.

In the light of that conclusion, the human rights question arose. Even though the property may not have been “let as a dwelling”, it was still capable of being the claimants’  home for purposes of Article 8. If it was, what protections could that right confer?

Lord Hodge for the majority proceeded on the assumption that Article 8 was engaged: [60]. On that assumption, he set out the arguments about Article 8 at [62] onwards. Proportionality involves striking a fair balance between the interests of the individual and those of the community as a whole. The ECHR guarantees rights that are practical and effective. Hence:

A public authority that interferes with a person’s right to respect for his or her home, especially when it intervenes in the most extreme way by removing him or her from that home, must have in place a fair procedure in order to show that respect. This requires the occupier to be involved in the decision-making process in order to protect his or her rights. In assessing the effectiveness of the procedure to achieve respect for the safeguarded rights the court looks to the whole proceedings involving the interference with the home. See Tysiac v Poland (2007) 45 EHRR 42 paras 113 and 115; Blecic v Croatia para 68; Zehentner v Austria (2011) 52 EHRR 22 para 54.

A fair procedure requires the occupant to have a right to raise the issue of the proportionality of the interference and to have that issue determined by an independent tribunal. So the claimants submit that the procedural protections in Article 8 require the owner to obtain a court order before evicting the occupant, thus enabling the latter to raise the issue of proportionality as a defence. The Council and the Secretary of State disagreed;  it sufficed if there are procedures by which the occupant can raise the issue before an independent tribunal, other than by the Council having itself to seek possession.

The Court considered the various investigative procedures which the Council had to go through to determine its duties towards applicants, including investigations concerning any children involved. It determined that these were sufficient for Article 8 purposes. The Council did not additionally have to take the applicants to court; applicants could challenge certain of those administrative decisions by judicial review when appropriate.

It was only in very exceptional cases that the applicant will succeed in raising an arguable case of a lack of proportionality where an applicant has no right under domestic law to remain in possession of a property. This, said Lord Hodge,

was so particularly where an authority seeks to recover possession of interim accommodation provided under section 188 of the 1996 Act: if court proceedings are necessary, and the day of the court hearing arrives, what would be the homeless person’s defence?

He then at [67]-[74] carried out a structured analysis of Article 8’s protection – which I have very shortly  summarised above. The range of procedural safeguards, giving of notice, opportunities to participate in the decision-making process, and potential challenges were sufficient to comply with Article 8’s requirements. Given the public interest in having the properties available for other potential applicants, eviction without court proceedings was not disproportionate.

The minority in the Court thought that the properties had been “let as a dwelling” and therefore the Council should have sought possession proceedings. The minority however agreed with the majority on its analysis of the human rights issues.

Net effect: both sets of appeals dismissed.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals Anne Sacoolas anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board care homes Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus coronavirus act 2020 costs costs budgets Court of Protection covid crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy diplomatic relations disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Harry Dunn Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy procurement Professional Discipline Property proportionality prosecutions prostituton Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism The Round Up tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Weekly Round-up Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: