Within reason

Tension between the House of Lords and the European Court of Human Rights as to the proper approach to article 8 in the context of claims for possession brought by 'social' landlords against insecure occupiers of residential accommodation has caused uncertainty in the law.

This is making these cases increasingly difficult to deal with, taking up a large amount of the county courts' time and directly affecting some of the most vulnerable people in society.

This is a complex area of law, but with an overriding theme: good social landlords should always consider the reasonableness and proportionality of any decision to evict a person from his or her home.

The ECtHR position is exemplified in the case of Cosic v Croatia (App No. 28261/06). In essence, any person at risk of losing their home must have the right to have the decision to claim possession determined by an independent and impartial tribunal. The relative simplicity of this approach has been very difficult to apply in practice.

From a domestic law point of view, the starting point is the decision of the House of Lords in Harrow LBC v Qazi [2003] UKHL 43 '“ in which a wife left the premises and terminated a joint secure tenancy held with her husband. He remained and sought unsuccessfully to have the tenancy transferred into his sole name. The landlord sought possession and Mr Qazi defended the claim on the basis that article 8 applied as it was his home.

Compatibility with article 8

The House of Lords decided (in a 3:2 decision) that article 8 did apply but that the application of the law that enabled a public authority landlord to exercise its unqualified right to recover possession, following service of a notice to quit which had terminated the tenancy, did not violate the essence of the right to respect for the home under article 8(1). It followed that the question whether any interference was permitted by article 8(2) did not require to be considered by the county court. Lord Bingham and Lord Steyn, dissenting, concluded that article 8(2) justification should be considered by the county court.

The House of Lords revisited the decision in Qazi in the case of Kay v Lambeth LBC & Price v Leeds CC [2006] UKHL 10 following the decision of the ECtHR in Connors v UK (Application No: 00066746/0). It was held that the decision in Qazi '“ that the enforcement of a right to possession in accordance with the domestic law of property could never be incompatible with article 8 '“ had to be modified in light of Connors.

This was achieved by providing two mechanisms for dealing with the demands of article 8. First, a challenge to the compatibility of the underlying domestic law with the Convention ('Gateway A') and secondly, by approving of defences being raised in the county court on classic judicial review grounds ('Gateway B') (Lord Hope's speech at paragraph 110. See 'How do you solve a problem like Article 8?', solicitorsjournal.com, 3 September 2008).

The minority opinion was that in highly exceptional circumstances an occupier might be able to raise a seriously arguable case, on the basis of his personal circumstances, that a possession order would be in breach of article 8.

The issue returned to the House of Lords for a third time in the case of Doherty v Birmingham City Council [2008] UKHL 57. This is presently the leading domestic authority in this area and must always take precedence over decisions of the ECtHR where there is a conflict '“ applying the principle of stare decisis.

The ratio of Doherty is that county courts should continue to follow the guidance given in Kay when considering a Convention-based defence to a claim for possession subject to some relatively small but equally important amendments to paragraph 110 of Lord Hope's speech (in Kay).

In relation to Gateway A, it was decided that a declaration of incompatibility would have been appropriate because (a) this was not a claim for possession at common law but rather by operation of a statutory scheme; (b) the statutory scheme created unjustifiable discrimination against gypsies; and (c) section 6(2)(b) of the Housing and Regeneration Act (HRA) applied making it impossible to interpret the statute in a manner compatible with the Convention under section 3(1).

Such a declaration was not needed, however, because of legislation contained in the HRA. In relation to Gateway B, the grounds of challenge are not strictly confined to classic Wednesbury grounds but are 'wider' and may include the defendant's personal circumstances including such matters as the length of occupation and the aim/reasons of the landlord (paragraph 55, Lord Hope).

The issue of whether Convention-based arguments are permitted under Gateway B in the county court is far from clear. While Lord Walker (paragraphs 108-110) and Lord Mance (paragraph 162) come closest to saying that they should be permitted, Lord Scott also makes specific reference to consideration of personal circumstances when deciding whether the decision to evict was unreasonable (paragraph 70) and disproportionate and even Lord Hope's reference to 'wider' grounds may give scope for further argument.

Following Doherty, the Court of Appeal has sought to apply these principles in three important cases.

Reasonableness

In Doran v Liverpool CC [2009] EWCA Civ 146, the landlord claimed possession against a traveller occupying a piece of land following service of a valid notice to quit on the grounds that the conditions of the licence to occupy had been breached following allegations of anti-social behaviour. An order for possession was made in summary proceedings.

In dismissing the appeal, the Court of Appeal 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 (applying Kay).

The court confirmed that there was no formulaic or formalistic restriction on the factors which might be relied upon by the licensee in support of an argument that the local authority's decision to serve a notice to quit, and seek a possession order, was one which no reasonable person would have taken (applying Doherty) but such matters were limited to those developed at common law and not by reference to Convention jurisprudence.

Personal circumstances

In Taylor v Central Bedforshire Council [2009] EWCA Civ 613, the defendant (trespassers) argued that the local authority had to have regard to their personal circumstances when making its decision to seek possession and was required to act proportionately.

In dismissing the appeal, a distinction was made between cases concerned with decisions to terminate leases or licences '“ cases concerned with statutory duties also fall into this category '“ and those where the local authority (or RSL) does not have any relation to the occupiers, the occupiers are trespassers and the authority has an unqualified right to possession. In the latter, a defence to a possession order which was based only on the personal circumstances of the occupier should be struck out.

Waller LJ went on to express doubt about confining the court's examination to the original decision to seek possession. He disagreed with Toulson LJ in Doran and preferred to analyse the situation as one being a 'series of decisions' which could therefore admit matters arising after the original decision had been made.

The law remains unclear as to whether this gives rise to the possibility that matters arising in the period leading up to the possession hearing may fall to be determined as part of public law defence not confined to traditional judicial review grounds.

Demoted tenant

Finally, in Pinnock v Manchester CC [2009] EWCA Civ 852, the defendant sought to raise an article 8 defence to a claim for possession against a demoted tenant. In a relatively short judgment, the Court of Appeal held that the county court was restricted by section 143D to considering whether the procedure under sections 143E and 143F of the 1996 Act had been followed. The court's review was limited to matters of procedure, and the county court could not review the substance or rationality of the landlord's decision, or whether it was consistent with the tenant's or other occupiers' Convention rights.

Where next?

Article 8/public law defences may only be pursued under Gateway A and/or Gateway B (as reinterpreted in Doherty). There are, however, several further issues that remain (see box below).

It is certain that article 8 in the context of claims for possession will soon feature in cases presented to the new Supreme Court '“ leave has already been granted in Ali v Birmingham CC [2008] EWCA Civ and funding to appeal has been granted in Pinnock '“ and that issues such as those referred to above (and many more) will continue to be raised in the county court.

A practical and sensible response on the part of social landlords would be to ensure that the issues of reasonableness and proportionality are considered every time, and for so long as a claim for possession is being actively pursued. This does not have to be onerous '“ so long as short written reasons are kept and the occupier has been given an opportunity to respond to those reasons.

This will go a long way to ensuring that those who are at risk of losing their homes are treated with a minimum amount of fairness and respect. It will also greatly assist the process of determining these complicated issues in the county court and encourage good housing management decisions generally.