Poplar Housing and Regeneration Community Housing Association Ltd (Poplar Harca) (Respondent/Claimant) v Stephen Howe

JurisdictionEngland & Wales
JudgeMRS JUSTICE RAFFERTY DBE,Mrs Justice Rafferty
Judgment Date13 July 2010
Neutral Citation[2010] EWHC 1745 (QB)
Date13 July 2010
CourtQueen's Bench Division
Docket NumberCase No: CC/2010/PTA/0013

[2010] EWHC 1745 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Before: Mrs Justice Rafferty DBE

Case No: CC/2010/PTA/0013

Between
Poplar Housing and Regeneration Community Housing Association Limited (Poplar Harca)
Respondent/Claimant
and
Stephen Howe
Appellant/Defendant

Andrew Lane (instructed by Batchelors Solicitors) for the Claimant

Terence Gallivan and David Cowan (instructed by Miles & Partners) for the Defendant

Hearing date: 23 rd June 2010

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.

MRS JUSTICE RAFFERTY DBE Mrs Justice Rafferty

Mrs Justice Rafferty:

1

This is an application for permission to appeal the 9 th October 2009 Order of Miss Recorder Wright QC as she then was that the Appellant give up possession of 27 Dewberry Street, London, E14 0RW (“the property”) to the Respondent.

2

The Appellant, who enjoys ill-health, and his estranged wife Jean become joint secure tenants of the London Borough of Tower Hamlets (“the council”) in the property, itself transferred to the Respondent, which become the registered proprietor, after which the Appellant and Mrs Howe became assured tenants. In May 2006, after husband and wife separated Mrs Howe was accepted by the council as homeless and on 31 st May 2006 she signed a “termination of tenancy” form paving the way for an offer of another property.

3

The Council and the Respondent are partners to and in a Common Housing Register and common allocations policy and on the Appellant's behalf the Respondent successfully applied to the council's Housing Management Panel for rehousing. He received four offers of accommodation, all of which he found unsuitable, at least in part as too small, including the fourth, Zetland Street. Central to the Appellant's case was the Respondent's refusal of a moving allowance because he was not a legal tenant, although it offered to waive rent arrears on the property.

4

The Respondent sought to exercise its mandatory right to possession in reliance on Hammersmith LBC v Monk [1992] 1 AC 478 (“Monk”). The rule in Monk provides that by giving a valid notice to quit any one joint tenant may terminate the tenancy, thereby destroying any other joint tenant's legal interest in it. The House of Lords in Harrow LBE v Qazi [2004] 1 AC 983 accepted that the rule was compliant with Article 8.

5

The Appellant argued grounds based on the Human Rights Act 1998 and on public law. At the court below he also claimed that he had been granted a fresh tenancy after Mrs Howe had left but does not pursue it here. The Recorder found no seriously arguable case to remit to the High Court on the Human Rights Act 1998 and public law grounds.

Grounds of Appeal

6

In grounds of appeal the complaints are:

a) The Recorder should have remitted the matter to the High Court for a declaration that the rule in Monk is incompatible with the Appellant's right to respect for his home under Article 8, Schedule 1, Human Rights Act 1998, in other words in reliance on Gateway (a) as required by the House of Lords in Doherty v Birmingham City Council [2009] 1 AC 367.

b) The Recorder should have remitted the matter to the High Court for a declaration that the notice to quite was unlawful because:

(i) The Respondent by enabling Mrs Howe to execute the notice to quit failed to consider the interest in his home of the Appellant when other options were available.

c) The Recorder erred in finding that the offer of Zetland Street was not unsuitable as a consequence of the Appellant's inability to fund his own removal expenses.

d) The Recorder erred in finding that the Appellant was not entitled to his removal expenses under the cash incentive scheme.

The compatibility issue

Gateway (a)

7

The issue is whether the rule in Monk be per se incompatible with Article 8, Schedule 1, Human Rights Act 1998 as, without the proportionality and reasonableness being determined by an independent tribunal, permitting eviction. Were it incompatible its application would amount to the court acting unlawfully within the meaning of s.6 of the Human Rights Act 1998.

Article 8 reads as follows:

“Right to respect for private and family life.

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, or for the protection of the rights and freedoms of others.”

In Kay v LB Lambeth [2006] 2 AC 465 (“Kay”) at 203 Lord Brown said:

“… where under domestic law the owner's right to possession is plainly made out…….. the judge in my opinion has no option but to assume that our domestic law properly strikes the necessary balances between competing interests… and that in applying it properly he is accordingly discharging his duty under section 6 of the Human Rights Act 1998. Where section 89 of the Housing Act 1980 applies, the judge will to that extent have discretion to postpone possession. That apart, however, he has no discretion and the order must be made, leading to the eventual execution of the warrant for possession. Where no statutory protection is afforded to occupiers that should be assumed to be Parliament's will: sometimes that will be clearly evident from the terms of the governing legislation…; even, however, where the owner's rights arise at common law, the absence of statutory protection must surely be, as my noble and learned friend Lord Hope suggests, the result of a deliberate decision by Parliament to leave the owner's right to recover possession in these cases unqualified. As Lord Bingham observes at para 36, it is not unrealistic to regard the general law as striking the required balance.”

The challenge derives from the judgment of Lord Hope at paragraph 110 in Kay:

“… (a) if a seriously arguable point is raised that the law which enables the court to make the possession order is incompatible with art 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 s 3, in a way that is compatible with art 8, or (ii) by adjourning the proceedings to enable the compatibility issue to be dealt with in the High Court…”

8

Lord Bingham said:

“(4) Deciding whether the defendant has a seriously arguable case [on gateway (a) or (b)] will not call for a full-blown trial. This question should be decided summarily, on the basis of an affidavit or of the defendant's defence, 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. (5) If the court considers the defence sought to be raised on one or both of these grounds is not seriously arguable the court should proceed to make a possession order. (6) Where a seriously arguable issue on one of these grounds is raised, the court should itself decide this issue, subject to this: where an issue arises on the application of section 3 (of the Human Rights Act) the judge should consider whether it may be appropriate to refer the proceedings to the High Court.”

9

The rule in Monk by some years pre-dated the incorporation of the ECHR into domestic law. It is worth pausing for a moment to review the striking similarity of the facts in this case with those in Qazi. In Qazi a joint secure tenancy between husband and departing wife who gave the housing authority notice to quit ended the joint tenancy and the husband's right to occupy the premises. The authority refused his application for a sole tenancy of family-sized accommodation and requested him to vacate the premises. Instead he remarried, continued to live there with his new wife and family and resisted an order for possession relying on Article 8.

10

Lord Hope said this:

“……….neither joint tenant has any longer any right to remain in the premises. The county court has no discretion as to whether or not it should grant an order for possession in these circumstances. In domestic law the making of an order for possession follows automatically…….. The only question is whether it is a violation of the respondent's article 8 rights….

….

84. I agree….that the Strasbourg jurisprudence has shown that contractual and proprietary rights to possession cannot be defeated by a defence based on article 8. It follows that the question whether any interference is permitted by article 8(2) does not require, in this case, to be considered by the county court…”

11

Lord Millett said:

“103…..the local authority had an immediate right to possession. The premises were Mr Qazi's home, and evicting him would obviously amount to an interference with his enjoyment of the premises as his home. But his right to occupy them as such was circumscribed by the terms of his tenancy and had come to an end. Eviction was plainly necessary to protect the rights of the local authority as landowner. Its obligation to “respect” Mr Qazi's home was not infringed by its requirement that he vacate the premises at the expiry of the period during which it had agreed that he might occupy them. There was simply no balance to be struck.”

12

Notwithstanding the decisions in Qazi, Ka, Doherty, and Dixon [each of which was considered by the Recorder] the Appellant...

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