Hounslow London Borough Council v Adjei
| Jurisdiction | England & Wales |
| Judge | Mr Justice Pumfrey |
| Judgment Date | 10 February 2004 |
| Neutral Citation | [2004] EWHC 207 (Ch) |
| Date | 10 February 2004 |
| Court | Chancery Division |
| Docket Number | Case No: CH/2003/APP/0077 |
[2004] EWHC 207 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
APPEAL COURT
On Appeal from the Staines County Court (HHJ Hull QC)
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Pumfrey
Case No: CH/2003/APP/0077
Alastair Panton (instructed by Lovell Chohan) for the Mr Adjei
Matthew Hutchings (instructed by the Borough Solicitor) for the Borough of Hounslow
Hearing dates: 25 July 2003
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Justice Pumfrey
Introduction
This is an appeal with the leave of the judge from the judgment of HHJ Hull QC sitting at the Staines County Court whereby he resolved certain preliminary issues and, in consequence of his decision on the preliminary issues, made an order for possession against the appellant, Mr Adjei.
The case raises a point of difficulty and some importance relating to the rights of one of two joint tenants when the other has brought a secure tenancy to an end by giving notice to quit. Judge Hull directed that the case be heard by the Court of Appeal, but the matter was remitted to the Chancery Division so that the ordinary course of an appeal should be followed.
After the draft judgment had been handed down and very shortly before the day on which judgment was to be delivered the House of Lords gave judgment in Harrow LBC v Qazi [2003] 3 WLR 794. That was a case in which one of two joint tenants gave notice to quit and the House considered in great detail the consequences of such a notice for the other tenant, and that case is highly material to this one.. It has accordingly proved necessary substantially to reconsider this judgment.
The agreed facts upon which Judge Hull came to his conclusions are these.
'1. By an agreement dated 14 April 2000, the claimant granted Mr Adjei and his wife Mrs R Adjei a joint weekly tenancy of premises at 156 Swan Road, Hanworth, Feltham, Middlesex ("the Premises"), which was a secure tenancy within the meaning of the Housing Act 1985.
2. The Premises comprise a 2 bedroom house. D and his wife lived there with their son, Frederick (DOB 19.05.88).
3. D's wife approached C and made allegations of domestic violence against D.
4. On 30.08.01, having left the Premises, D's wife served on C a notice to quit which determined the secure tenancy with effect from 01.10.01.
5. D's wife was subsequently rehoused by C pursuant to the provisions of Part VII of the Housing Act 1996.
6. By a letter dated 03.09.01 C informed D of the termination of the joint tenancy with effect from 0l.1O.Oland advised him to vacate the Premises.
7. On 14.09.01 D was interviewed by C's Estate Manager and its Equalities Adviser. D's son Frederick (DOB 19.05.88) was also present. They were aware of the above facts 1-6. C explained to D that its policy was to seek possession following determination of a secure tenancy by tenant's notice to quit. C advised D to obtain legal advice. Frederick stated that he wished to continue to live with D. C asked D whether there was any Social Services involvement with the family and was told there was none. C advised D to approach C's Homeless Persons Unit and Social Services Department for assistance and advice.
8. D and Frederick continued to live at the Premises without C's licence or consent.
9. On 18.10.01 C brought these possession proceedings.
10. C did not put to D the allegations of domestic violence against D or rely on them as a reason for seeking possession. D denies the allegations of domestic violence, and for the purpose of the preliminary issues, C adduces no evidence to the contrary.
11. C operates a general policy of seeking a possession order in cases where a secure tenancy has been determined by joint tenant's notice to quit and the other former tenant remains in occupation. C considers that general policy to be in accordance with the objectives of the statutory scheme for secure tenancies, protection from eviction, homelessness and housing allocation.'
12. C does not consider that the facts of D's case, namely that D and Frederick, his 14 year old son, are residing in a 2 bedroom house which is their home following determination of the secure tenancy, amount to exceptional circumstances justifying a departure from the above general policy.'
Mr Adjei's pleaded case is for present purposes set out in paragraphs 4 and 7 of his Defence.
'4. The claimant is attempting to evict the Defendant from his home. This, prima facie, is a breach of Article 8(1) Lambeth LBC v Howard 33 HLR 636. This applies on the particular facts of this case where the council is relying on the notice to quit of one joint tenant to evict the other joint tenant Ure v United Kingdom app no. 2802/95. Thus the question is, is the action justified on the facts of this case Under Article 8(2) as being "necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
…
7. The Defendant was never asked by the council if the allegations [of violence made by his wife] were true, but he was automatically given a notice to quit, without the council making any enquiries as to the allegations of the Defendant and his son's need for accommodation. It is thus averred that this AUTOMATIC eviction of the Defendant and his son without making any enquiries at all, cannot be said in any way to be necessary in a democratic society.'
Hounslow operates a policy that it contends is consistent with the provisions of the Housing Acts to seek possession in all cases where a secure tenancy is brought to an end by notice to quit. It assesses the person or persons thereby made homeless and allocates them accommodation in accordance with their need. Mr Panton says that if Mr Adjei and his 15-year-old son are evicted, they will be in priority housing need, and that since they are not 'over-occupying' the Premises, the assessment will inevitably result in the same or similar premises being allocated to Mr Adjei, and the whole operation will be wasteful of time and costs. Thus, he contends that to follow Hounslow's declared policy will in this case result in an interference with the rights enjoyed by Mr Adjei that are protected by Article 8 of the European Convention on Human Rights and Fundamental Freedoms ('the ECHR'). That interference will, in this case, be disproportionate to the purposes achieved by it, and accordingly possession should not be ordered until after the assessment. Alternatively (this is paragraph 7 of the Defence) it is contended (and this may have different jurisdictional implications) that the operation of an automatic policy like that operated by Hounslow is unlawful, and the authority must consider in every case whether to seek a possession order having regard to all the relevant circumstances of the case before such an order is sought.
The challenge to Hounslow's treatment of Mr Adjei thus traverses 'macro' considerations (the overall policy of the legislation and Hounslow's general housing policy) and 'micro' considerations (the treatment of Mr Adjei in the present case). The case raises directly the question whether either class of objection can form a defence to a possession action in the County Court.
The rule of domestic law: notice to quit by one of a number of joint tenants
It is an implied term of every periodic joint tenancy that the tenancy is determinable by notice to quit given by one joint tenant without the concurrence of the other joint tenant: Hammersmith and Fulham LBC v Monk [1992]1 AC 478, HL. To hold otherwise would presuppose that each joint tenant had assumed a potentially irrevocable obligation for the duration of their joint lives. While paragraph 4 of his Defence is perhaps ambiguous, at the hearing before me Mr Adjei did not challenge this doctrine of the common law, accepting that it is, in itself, compatible with Article 8 of the ECHR.
There can therefore be no serious doubt that Mr Adjei's secure tenancy was determined by his wife's notice. He is a trespasser. If his contentions are correct, and if he will in fact be in priority need if he is evicted, the effect of his contentions is that he is entitled to priority over all others in the priority needs queue.
Article 8 of the ECHR
Article 8 of the ECHR provides that: (1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, of for the protection of the rights and freedoms of others.
In paragraphs 70–1 of his speech in Qazi's case, Lord Hope of Craighead said this:
'70 I mention this question merely to say that I consider that it can receive only one answer in the circumstances. The effect of an order for possession will be to require the respondent to leave the premises which are his "home" for the purposes of article 8(1). Regarding the question of respect for his home as one which is directed in essence to his right to be respected by the public authorities in the enjoyment of his privacy, his removal from his home is bound to interfere with his enjoyment of that right at least to some extent. As Sedley LJ said in Lambeth London Borough Council v...
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