Poplar Housing and Regeneration Community Association Ltd v Donoghue
| Jurisdiction | England & Wales |
| Judgment Date | 27 April 2001 |
| Neutral Citation | [2001] EWCA Civ 595 |
| Docket Number | Case No: 2000/3758 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 April 2001 |
[2001] EWCA Civ 595
The Lord Chief Justice
Lord Justice May
Lord Justice Jonathan Parker
Case No: 2000/3758
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BOW COUNTY COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Jan Luba QC & Miss Fiona Scolding (instructed by Messrs Breeze Benton, Bow) appeared for the Appellant Mr Ashley Underwood QC & Mr Adrian Davis (Tower Hamlets Legal Services, Isle of Dogs) appeared for the) Respondent Mr Philip Sales & Miss Sarah Moore (Treasury Solicitors, London) appeared for the Interested Party
LORD WOOLF CJ:
The Background
This is a judgment of the court on an appeal from an order of District Judge Naqvi dated 5 December 2000. The judge gave permission to appeal and directed that the appeal should be heard by the Court of Appeal pursuant to CPR 52.14 on the ground that the appeal raises important points of principle and practice.
The proceedings started in the Bow County Court as a straightforward claim for possession of 31 Nairn Street London E14 OLQ, of which the defendant was the tenant and which is owned by the claimant housing association ("Poplar"). On the day of the hearing, 5 December 2000, the proceedings were in the ordinary housing list. It had not been appreciated that the defendant wished to raise the issue that to make an order for possession would contravene her rights to respect for her private and family life and respect for her home contrary to Article 8 of Schedule 1, Human Rights Act 1998 (" HRA"). Fortunately, notwithstanding the novel nature of the contention, Judge Naqvi was in a position to consider the arguments which were advanced before him and give judgment straight away. We have a copy of that judgment and we commend the judge on the manner in which he dealt with the case.
The Approach of the Judge
As he points out in his judgment, although this was not how the case was initially presented, the tenancy was an assured shorthold tenancy subject to section 21 of the Housing Act 1988 ("1988 Act"). Section 21 deals with the recovery of possession on the expiry or termination of assured shorthold tenancies. Under the section, the court's discretion not to make an order for possession is strictly limited.
Section 21(1) applies to orders of possession of dwelling houses after the coming to an end of an assured shorthold tenancy for a fixed term. The defendant did not have a fixed term tenancy. She had a periodic tenancy. Periodic tenancies are dealt with by section 21(4). Section 21(4) provides:
"(4) Without prejudice to any such right as is referred to in subsection (1) above, a court shall make an order for possession of a dwelling house let on an assured shorthold tenancy which is a periodic tenancy if the court is satisfied
(a) that the landlord or, in the case of joint landlords, at least one of them has given to the tenant a notice [in writing] stating that, after a date specified in the notice, being the last day of a period of the tenancy and not earlier than two months after the date the notice was given, possession of the dwelling-house is required by virtue of this section; and
(b) that the date specified in the notice under paragraph (a) above is not earlier than the earliest day on which, apart from section 5(1) above, the tenancy could be brought to an end by a notice to quit given by the landlord on the same date as the notice under paragraph (a) above" (emphasis added).
It will be observed that section 21(4) appears to be mandatory in its terms. The court has to make an order for possession if there is a tenancy to which the subsection applies and the appropriate notice has been given. There is no requirement for the court to be satisfied that it is reasonable to make an order.
The first point taken on behalf of the defendant before the judge was that the notice which had been given did not comply with section 5 of the Protection from Eviction Act 1977. The judge held that section 5 only applied to purely common law notices to quit and not to statutory notices under section 21(4). No appeal has been pursued in respect of that holding.
The judge then turned his attention to the HRA argument. It was contended that to make an order for possession would contravene Articles 6 and 8 of the ECHR and would involve interpreting section 21(4) in a manner which is not compatible with the HRA. The judge rejected these contentions as well. He said:
"If I were to read section 21(4) in the way in which I am being enjoined to do, this would, in effect, enable people who were intentionally homeless – and that is a finding that has been already made by the local authority, which has been reviewed and has not been challenged, the final decision having been made a year ago in November 1999 – to jump the housing queue, that would impede the Human Rights of others and that is the proviso to Article [8](2) that I have got in mind, "the protection of the rights and freedoms of others"."
He did, however, postpone the date on which the Order came into force for 42 days. This was the maximum extension which he was entitled to give. This was because of the defendant's exceptional personal circumstances. In addition, as already stated, the judge gave permission to the defendant to appeal directly to the Court of Appeal.
It is the defendant's contention that the judge should have adjourned the hearing so as to enable her to place before the court the substantial evidence, which is now before this court, in support of her appeal. The evidence is directed to the issues of whether the housing association is a public body or performing a public function and whether any breach of Article 8 could be justified on the grounds set out in Article 8(2).
In our judgment, where it is possible for a judge to give a decision summarily, as the judge did here, in a case where there will almost certainly be an appeal, there can be substantial advantages in adopting this approach. It can avoid expense and delay being incurred both at first instance and in the Court of Appeal.
The Facts
The defendant moved into 31 Nairn Street in March 1998. She then had 3 children aged 3, 4 and 5. At the time of the possession proceedings she was expecting her fourth. The tenancy was granted by the London Borough of Tower Hamlets ("Tower Hamlets") pursuant to its duties as the local housing authority under section 188 of the Housing Act 1996 (the "1996 Act"). The tenancy was a weekly non-secure tenancy under Schedule 1 para 4 of the Housing Act 1985. This was recorded in the written agreement dated 25 February 1998. The property was later transferred to Poplar. Poplar was created as a housing association by Tower Hamlets in order to transfer to it a substantial proportion of the council's housing stock.
The defendant had been provided with housing by Tower Hamlets pending a decision as to whether she was intentionally homeless. On 16 September 1999, Tower Hamlets decided she was intentionally homeless and notified the defendant to this effect (the 1996 Act, section 184). The reason given was that the defendant had left an assured shorthold tenancy to live with her sister. A review of this decision was conducted by Tower Hamlets at the request of the defendant on the 29 November 1999. The decision was confirmed. Previously the defendant would have been able, if she wished, to challenge the decision on an application for judicial review. However, by November 1999, the procedure for challenging the decision was by way of appeal to the County Court. The defendant did not appeal.
In January or February 2000, Tower Hamlets issued proceedings for possession against the defendant. The authority then discovered that it was not the landlord and the proceedings were withdrawn. On 26 June 2000, Tower Hamlets wrote to the defendant informing her that she was a tenant of Poplar and was subject to an assured shorthold tenancy. On 27 June, a notice was served by Poplar under section 21(4) of the 1988 Act. On the 19 October 2000, the present proceedings were commenced.
Intervention of the Secretary of State for the Environment, Transport and the Regions
In this case the Secretary of State for the Environment, Transport and the Regions ("the Department") intervened in the proceedings. He was able to do so because the defendant was seeking a declaration of incompatibility. The HRA and the CPR make provision for the Crown to intervene where a declaration that primary legislation is incompatible may be made by a court. Although the Department has been able to intervene, the parties suggest it is unclear what are the respective responsibilities of the parties and the court in a situation where the Crown may want to intervene.
The relevant provisions of the HRA, the CPR and the Practice Direction are as follows:
The HRA provides:
"4(2) If the Court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.
4(5) In this section 'court' means –
(a) the House of Lords;
(b) the Judicial Committee of the Privy Council;
(c) the Courts-Martial Appeal Court;
(d) in Scotland, the High Court of Justiciary sitting otherwise than as a trial court or the Court of Session;
5(1) Where a Court is considering whether to make a declaration of that incompatibility, the Crown is entitled to notice in accordance with rules of court.
5(2) In any case to which subsection (1) applies –
(a) A Minister of the Crown (or a person...
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