Public Housing Law Seminar Kay and Doherty: practical issues

1
Public Housing Law SeminarKay and
Dohertypractical issues

• by
• Kelvin Rutledge

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• Public-law defences to private law claims the
  position pre-HRA
• Prior to the HRA, the general position was
  represented by Cocks v Thanet DC 1983 2 AC 286
  in which the House of Lords held that it was both
  contrary to public policy and an abuse of process
  to seek to establish an infringement of a
  persons rights under public law by a public body
  by action and thus evade the safeguards provided
  under RSC O.53 (CPR 54).

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• Two exceptions to the general rule
• 1. London Borough of Wandsworth v Winder 1985
  AC 461 - where the defence met the claim
  head-on
• 2. Avon County Council v Buscott 1988 QB 656
  where the public law challenge was collateral to
  the claim. If the court hearing it was satisfied
  there was a real prospect of success, it could
  adjourn the proceedings pending a judicial review
  

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• Human Rights Act 1998
• Section 6 - Acts of public authorities
• (1) It is unlawful for a public authority to act
  in a way which is incompatible with a Convention
  right.
• Section 8 Judicial remedies
• (1) In relation to any act (or proposed act) of
  a public authority which the court finds is (or
  would be) unlawful, it may grant such relief or
  remedy, or make such order, within its powers as
  it considers just and appropriate.

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• L B Harrow v Tarik Qazi 2003 UKHL 43
• Issue - whether Article 8 barred the local
  authoritys common law right to recover
  possession against a secure tenant whose joint
  tenant had served notice to quit on the
  authority. Qs case was rejected.
• Held - accepting (by a majority) that Qs
  accommodation remained, for the purposes of
  Article 8(1), his home, the HL held that
  Article 8 did not give a right to a home only a
  right to respect for a persons home as an aspect
  of his right to privacy. Application of the
  common law, with a view to making the premises
  available for letting to others on the
  authoritys housing list, did not violate the
  essence of the right to respect for the home
  under Article 8(1). The case law of the ECtHR
  showed that contractual and proprietary rights to
  possession could not be defeated by a defence
  based on Article 8. Consequently, it was
  unnecessary to consider whether any interference
  was permitted by Article 8(2).

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• Connors v United Kingdom (2004) 40 EHRR 189
• C and his family lived as licensees on a local
  authority gipsy site for most of the preceding 16
  years when, in January 2000, they were given
  notice to quit. The notice was prompted by
  complaints about the behaviour on the site of
  some members of the applicants family or their
  guests, which were said to be a breach of the
  license conditions. The applicant did not leave
  and the local authority brought possession
  proceedings. Cs attempt to seek judicial review
  of the authoritys decision to evict failed.
• The Strasbourg court held that judicial review
  was not an adequate safeguard in this case. It
  reasoned
• the eviction of the applicant and his family
  from the local authority site was not attended by
  the requisite procedural safeguards, namely the
  requirement to establish proper justification for
  the serious interference with his rights and
  consequently cannot be regarded as justified by a
  'pressing social need' or proportionate to the
  legitimate aim being pursued. There has,
  accordingly, been a violation of Article 8 of the
  Convention.

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• Kay Others v L B Lambeth 2006 UKHL 10
• In light of the apparent inconsistency between
  Qazi and Connors, the House of Lords gave leave
  to appeal in Kay and heard it by a committee
  comprising 7 members.
• K and others sought to defend possession
  proceedings, amongst other grounds, on the basis
  that their eviction would breach their Article 8
  rights. They had occupied short-life
  accommodation owned by Lambeth Council and let to
  them by Lambeths licensee, London Quadrant
  Housing Trust, in some cases for over twenty
  years. Vis-à-vis LQHT they were secure tenants
  but Lambeth, as superior landlord, sought to
  evict them as trespassers relying on its common
  law right to possession.
• The House of Lords, in agreement with the
  decisions of the Court of Appeal and of the trial
  judge, held that Mr Kays Article 8 defence
  disclosed no reasonable ground for defending the
  claim and must be struck out.

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• Para 110 of Lord Hopes speech
• I would hold that a defence which does not
  challenge the law under which the possession
  order is sought as being incompatible with the
  article 8 but is based only on the occupier's
  personal circumstances should be struck out. I do
  not think that McPhail v Persons, Names Unknown
  1973 Ch 447 needs to be reconsidered in the
  light of Strasbourg case law. Where domestic law
  provides for personal circumstances to be taken
  into account, as in a case where the statutory
  test is whether it would be reasonable to make a
  possession order, then a fair opportunity must be
  given for the arguments in favour of the occupier
  to be presented. But 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 proceeding to summary judgment
  and making the possession order are these (a) if
  a seriously arguable point is raised that the law
  which enables 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 the
  argument in one or other of two ways (i) by
  giving effect to the law, so far as it is
  possible for it do so under section 3, in a way
  that is compatible with article 8, or (ii) by
  adjourning the proceedings to enable the
  compatibility issue to be dealt with in the High
  Court (b) 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 that no reasonable person would consider
  justifiable, he should be permitted to do this
  provided again that the point is seriously
  arguable Wandsworth London Borough Council v
  Winder 1985 AC 461. The common law as explained
  in that case is, of course, compatible with
  article 8. It provides an additional safeguard.

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• Gateway (a)
• Either (i) interpret law in ECHR-compliant way,
  or (ii) adjourn pending incompatibility
  challenge
• Gateway (b)
• Public-law challenge in the proceedings
  themselves on traditional judicial review grounds
  

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• McCann v UK (App. No. 19009/04, 13 May 2008)
• Factually similar to Qazi
• The landlord authority, having rehoused the
  applicants wife and children under its domestic
  violence policy, sought possession against the
  husband on the ground of the wifes notice to
  quit. The Fourth Section of the ECtHR held,
  without the benefit of an oral hearing, that the
  lack of adequate procedural safeguards in
  possession proceedings violated the husbands
  right to respect for his home.
• The decision in McCann was given after oral
  argument in Doherty, but before judgment was
  given in that case. In the meantime, the UK
  Parliament had addressed the matter in the
  Housing and Regeneration Bill 2008.

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• William Doherty Others v Birmingham CC 2008
  UKHL 57
• D appealed against the dismissal of his appeal
  against an order for his eviction from a caravan
  site owned by the respondent local authority on
  the basis that his removal would violate his
  Article 8 rights. He had been granted a licence
  by the local authority to station a caravan on
  the site, used as a gypsy and travellers caravan
  site, in 1987. When the local authority served
  notice to quit, D and his family had been
  resident on the site for 17 years. The local
  authority asserted that it required vacant
  possession to carry out essential improvement
  works, and that once the works were completed the
  site was to be managed as temporary accommodation
  for travellers. D maintained that the local
  authority was only entitled to an order for
  possession if it was proportionate in all the
  circumstances of the case, and that the
  circumstances of the instant case did not satisfy
  that test. He relied on gateways (a) and (b).

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• In the House of Lords
• Lords Rodger and Scott agreed with the speeches
  of Lords Hope and Walker
• Lord Walker agreed that Lord Hopes approach is
  binding 123, but had misgivings heightened by
  McCann
• Lord Mances views were in a minority. But he
  identified what his view of the majority was
  140, 164. The ratio appears to be found
  primarily in the speech of Lord Hope
• The decision was to remit the case to the High
  Court for a determination as to whether Gateway
  (b) applied because it was arguable that it might
  be unreasonable to issue a notice to quit after
  17 years per Lords Hope 54 Scott 77 Walker
  124

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• On overruling Kay
• Constitutionally it would have taken a committee
  of 9 to overrule the decision of the majority
  reflected in paragraph 110 of Kay, as the
  Committee in Doherty recognised per Lords Hope
  19 Scott 61 and Walker 115.
• The Committee found, therefore, that paragraph
  110 of Kay remained good law but requires some
  modification per Lords Hope 19/22 Scott
  61 and Walker 108

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• Lord Hopes basic rule (para 22)
• So I must make it clear at the outset that
  nothing that I may say in this opinion is to be
  understood as detracting in any way from the
  basic law as laid down by the majority in Qazi
  and re-affirmed by the majority in Kay. The
  effect of those decisions was summarised by
  Baroness Hale in Belfast City Council v Miss
  Behavin' Ltd 2007 1 WLR 1420, para 36
• there are situations in which the court is
  entitled to say that the legislation itself
  strikes a fair balance between the rights of the
  individual and the interests of the community, so
  that there is no room for the court to strike the
  balance in the individual case. That is what this
  House decided in Kay v Lambeth London Borough
  Council 2006 2 AC 465.
• The basic rule is that such interference with
  the right to respect for the home as may flow
  from the application of the law which enables a
  public authority to exercise its unqualified
  right to possession does not violate the essence
  of the Convention right. Unless the legislation
  itself can be attacked, this is a conclusion
  which can be applied to all cases of this type
  generally. It is not open to the court, once it
  has decided in any individual case that the
  effect of the legislation is that the public
  authority's right to possession is unqualified,
  to hold that the exercise of that right should be
  denied because of the occupier's personal
  circumstances.

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• The modification
• Gateways (a) and (b) are not hermetically sealed
• ECHR considerations can enter via gateway (b)
• Super-Wednesbury approach in cases where domestic
  law lacks sufficient safeguards

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• Cases falling within the basic rule
• Qazi
• Kay
• Price?
• Taylor
• Pinnock

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• Exceptional cases
• Doherty
• Doran
• McCann ?

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• Post-Doherty decisions
• In Doran v Liverpool City Council 2009 EWCA
  Civ 146 The CA was concerned with a decision
  ordering the appellant, an Irish traveller, to
  deliver up vacant possession of a pitch at a
  traveller site to the respondent local authority.
  The Court held that if a licensee wished to
  advance public law grounds for not making a
  possession order, he or she had to show a
  seriously arguable case that the local
  authority's decision to recover possession was
  one which no reasonable person would consider
  justifiable, and the submission in the instant
  case that no reasonable local authority would
  have served on the appellant a notice to quit her
  pitch on a traveller site was hopelessly
  unarguable.

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• Toulson LJ analysed the points on which all 7
  members of the Appellate Committee in Kay were
  agreed, the point on which there was disagreement
  and how he saw the position post-Doherty. He said
  there was agreement in Kay as follows
• 1. If a licensee wishes to advance public law
  grounds for not making a possession order, it is
  for the licensee to raise the point.
• 2. There are two potential grounds or gateways
  (to use the language of later authorities) for
  making such a challenge
• (a) that the law which requires the court to
  make a possession order is itself incompatible
  with the Convention
• (b) that the local authority's exercise of its
  power to serve a notice to quit and seek a
  possession order was unlawful on public law
  grounds.
• (There was sharp disagreement as to the breadth
  of the latter ground or gateway)

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• Toulson LJ (cont.)
• 3. Where either ground is raised, the court must
  first consider whether the licensee has a
  seriously arguable case. As to that, Lord Bingham
  said at para 39
• This question should be decided summarily, on
  the basis of an affidavit or of the defendant's
  evidence, suitably particularised, or in whatever
  other summary way the court considers
  appropriate. The procedural aim of the court must
  be to decide this question as expeditiously as is
  consistent with the defendant having a fair
  opportunity to present his case on this
  question.
• 4. If the court considers that the defence
  sought to be raised on either or both grounds is
  not seriously arguable, the court should make a
  possession order.
• 5. Where a seriously arguable challenge is
  raised on the first ground, the court has either
  to decide the case itself, doing the best it can
  to arrive at a result which is compatible with
  the Convention, or it may refer the case to the
  High Court.
• 6. Where a seriously arguable issue is raised on
  the second ground, the court should decide it. In
  other words, the licensee is not required to
  pursue such a challenge by way of a separate
  judicial review application but can raise it as a
  defence to the claim for possession.

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• As to the effect of Doherty, Toulson LJ saw this
  as two fold (paras 48-52)
• First, there is no formulaic or formalistic
  restriction of the factors which may be relied
  upon by the licensee in support of an argument
  that the council's decision to serve a notice to
  quit, and seek a possession order, was one which
  no reasonable council would have taken. Such
  factors are not automatically irrelevant simply
  because they may include the licensee's personal
  circumstances, such as length of time of
  occupation. In Doherty, where the family had been
  in occupation for a substantial time without
  causing any trouble, but the council wanted to
  use the site in a different way, it might also be
  thought relevant whether the council had taken
  any steps to offer the family, or help them to
  acquire, alternative accommodation.

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• Secondly, the question whether the council's
  decision was one which no reasonable person would
  have made is to be decided by applying public law
  principles as they have been developed at common
  law, and not through the lens of the Convention.
• There is no conflict between these two
  propositions, which should be capable of being
  applied without additional complexity. As
  Baroness Hale observed in Kay at para 190, in a
  passage cited by Lord Walker in Doherty at para
  108
• It should not be forgotten that in an
  appropriate case, the range of considerations
  which any public authority should take into
  account in deciding whether to invoke its powers
  can be very wide see R v Lincolnshire County
  Council ex parte Atkinson (1995) 8 Admin LR 529
  R (Casey) v Crawley Borough Council 2006 EWHC
  301 (Admin).
• Having said that the question whether the
  councils decision was unreasonable has to be
  decided by applying public law principles as they
  have been developed at common law, it is to be
  remembered that those principles are not frozen.
  Even before the enactment of the HRA, our public
  law principles were being influenced by
  Convention ways of thinking. Since its enactment,
  the process has gathered momentum. It is now a
  well recognised fact that the Convention is
  influencing the shape and development of our
  domestic public law principles, whether one uses
  the metaphors of embedding, weaving into the
  fabric, osmosis or alignment. (See the judgment
  of Lord Walker in Doherty at para 109.)

23

• Taylor v Central Bedfordshire Council 2009 EWCA
  Civ 613
• The CA was concerned with a different factual
  situation to Doran but similar to Kay where a
  local authority had leased land to another
  authority for three years and sub-leased to a
  housing association to enable it to grant assured
  shorthold tenancies to homeless persons.
• Rejecting the occupiers Article 8 defences the
  Court, applying Kay, held that although the
  decision of a public authority was subject to
  judicial review on ordinary public law
  principles, it could not be a ground of challenge
  that the authority which otherwise had an
  absolute right to possession had failed to take
  account of personal circumstances. Such a defence
  should be struck out. The personal interests
  safeguarded by Article 8 were to be regarded as
  sufficiently safeguarded by the fulfilment of the
  requirements for the recovery of possession by
  the landowner laid down by the statute or by the
  common law.

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• Waller LJ said (para 45)
• Even if one made the assumption that the
  public authority was aware of the personal
  circumstances of the occupiers, their obligation
  to take account of them could never make it
  unreasonable to take proceedings for possession.
  Provided they could establish their absolute
  right to possession, personal circumstances could
  only be relevant to the extent to which a court
  was prepared to postpone execution, which a
  public authority would be entitled to leave to
  the court.

25

• Manchester City Council v Pinnock 2009 EWCA Civ
  852
• The CA considered the application of Doherty to
  the demoted tenancy scheme under the Housing Act
  1996. Reviewing all the authorities, including
  Taylor and Doran, Stanley Burnton LJ said
• In my judgment, two simple propositions follow
  from these authorities. First, a landlord
  deciding to seek possession in a statutory
  context such as the present, and a court making
  an order for possession, is acting so as to give
  effect to or enforce statutory provisions, and if
  those provisions are incompatible with Convention
  rights, the landlords decision and the order of
  the county court is nonetheless lawful by virtue
  of section 6(2)(b) of the Human Rights Act 1998.
• Secondly, on a judicial review of the landlords
  decision, the applicable grounds are those
  applicable on a non-Convention domestic review,
  subject to the rationality test extended as
  stated by Lord Hope in Doherty and commented upon
  in Doran and Taylor.

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• Practical considerations
• Arguability
• Whose duty to raise issue?
• Adjournment/stay
• Disclosure
• Track allocation
• Policy revision

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• Forthcoming Cases (Nov 2009)
• Manchester CC v Mushin
• L B Hounslow v Powell

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Public Housing Law SeminarKay and
Dohertypractical issues

• by
• Kelvin Rutledge