Housing, Article 8 and A1P1 in the Supreme Court
14 November 2014
Sims 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.
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Related posts
- Joint tenancy rule has nothing to do with Convention rights
- Case comment: Human rights, proportionality and local authority evictions
- Supreme Court bolsters rights of council tenants threatened with eviction
- Eviction of council tenants was breach of human rights
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