R (Coombes) v Secretary of State for Communities & Local Government

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMR JUSTICE CRANSTON
Judgment Date08 March 2010
Neutral Citation[2010] EWHC 666 (Admin)
Date08 March 2010
Docket NumberCO/12836/2009

[2010] EWHC 666 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Before: Mr Justice Cranston

CO/12836/2009

Between
The Queen on the Application of Coombes
Claimant
and
Secretary of State for Communities and Local Government
Defendant
Mayor and Burgesses of the London Borough of Waltham Forest
Second Defendant

Mr Toby Vanhegan appeared on behalf of the Claimant

Mr Simon Brilliant appeared on behalf of the Defendant

Miss Jessica Simor appeared on behalf of the Second Defendant

MR JUSTICE CRANSTON

Introduction

1

This is yet another case where Article 8 of the European Convention on Human Rights is invoked in the context of proceedings for the possession of property. The matter has been transferred to this court from Bow County Court by order of His Honour Judge Mitchell to deal with a counter-claim by the second defendant in the possession proceedings. Those proceedings are brought there by the Mayor and Burgesses of the London Borough of Waltham Forest (“the council”). For convenience, the second defendant in the county court proceedings is called the claimant in this court. In that counter-claim the claimant seeks a declaration of incompatibility under the Human Rights Act 1998 (“the 1998 Act”) against section 3 of the Protection from Eviction Act 1977 and related legislation.

Background

2

By an agreement dated 27 January 1954, the council granted to Mr John Coombes a tenancy of 3 Palmerston Court, Palmerston Road, London E17. The property is a two-bedroom ground-floor flat with a reception room, kitchenette, bathroom and shed. The claimant is the son of Mr Coombes and his wife Mrs Amy Coombes. He has lived at the property with his parents since 1954 when he was 6 years old. On 28 February 1999 Mr John Coombes died. Mrs Amy Coombes succeeded to the tenancy under section 85 of the Housing Act 1985. On 10 June 2005 she too died.

3

The following year the council served a notice to quit on the property but later they purported to withdraw it. Over two years later, on 11 August 2008, the council served another notice to quit on the claimant and his mother's personal representatives, set to expire on 15 September 2008. On 20 February 2009 a claim for possession was issued at Bow County Court.

4

The claimant seeks to defend the action on three grounds. First, he argues that the council granted him a fresh, secure tenancy of the property. Secondly, he alleges that his case has not been dealt with in accordance with the council's allocation scheme. By order of this court, the Bow County Court proceedings in relation to those two grounds are stayed until determination of the third ground. That third ground is the counterclaim raising the human rights issue. In essence, this third ground arises because the claimant contends that his personal circumstances, for example his long occupancy of the property, his attachment to it, and his care of his parents there, offer a basis for being permitted to remain.

The Issue

5

The issue before the court is the compatibility of section 3 of the Protection from Eviction Act 1977 and related legislation with Article 8 and, to an extent, Article 6 of the European Convention on Human Rights (“the Convention”). Article 8 (1) grants everyone the right to respect for, inter alia, their home. Article 8 (2) requires any interference by a public authority with the exercise of the right to respect for one's home to be in accordance with the law and necessary in a democratic society in the interests of, for example, the economic well-being of the country or for the protection of the rights and freedoms of others. Article 6 (1) states:

“In the determination of [a person's] civil rights and obligations ….. everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

6

Section 3 of the Protection from Eviction Act 1977 must be seen in its common law and statutory context. If a landlord seeks a possession order against a tenant with protection under the Rent Act 1977 or the various housing acts, it must be justified on the grounds enunciated there. Otherwise - for unprotected tenancies and licensees - section 3 requires, at the least, a court order for possession. Section 3 is headed Prohibition of Eviction without due process of law. It reads as follows:

“(1) Where any premises have been let as a dwelling under a tenancy which is neither a statutorily protected tenancy nor an excluded tenancy and—

(a) the tenancy (in this section referred to as the former tenancy) has come to an end, but

(b) the occupier continues to reside in the premises or part of them,

it shall not be lawful for the owner to enforce against the occupier, otherwise than by proceedings in the court, his right to recover possession of the premises.

(2) In this section 'the occupier', in relation to any premises, means any person lawfully residing in the premises or part of them at the termination of the former tenancy.”

7

As far as a local authority housing is concerned, section 21 (1) of the Housing Act 1985 confers on it the powers of general management, regulation and control. Local authority tenants obtain security if the conditions in Part IV of that Act are satisfied. A tenancy granted by a local authority satisfies the landlord conditions set out in section 80 and therefore, so long as the tenant condition in section 81 is also satisfied, the tenancy will be secure. The tenant condition requires that the tenant be an individual who occupies the property as his only or principal home.

8

Section 87 of the Housing Act 1985 provides that a member of the secure tenant's family is qualified to succeed to the tenancy if the property is occupied as the only or principal home at the time the tenant died and for the preceding 12 months. By virtue of section 89 (2), the tenancy vests automatically in the successor. Only one successor is permitted (section 87).

9

The balance struck in the legislation for succession was upheld by Moses J in R (Gangera) v London Borough of Hounslow [2003] EWHC 794, [2003] HLR 68, and Wandsworth Borough Council v Michalak [2002] EWCA 271, [2003] 1 WLR 617.

10

The claimant's case is that this combination of legislation precludes him advancing his personal circumstances as a defence to the council's possession action. The parties seem to be largely agreed that if the council properly served a valid notice to quit this had the effect of automatically terminating Mrs Amy Coombes' tenancy and automatically terminated the claimant's licence in the property, granted by his mother, pursuant to her secure tenancy. The claimant has not succeeded to the tenancy under Sections 87 and 89 of the Housing Act 1985. If the claimant is only an occupier the council has an automatic right to a possession order. The court must order possession if it is satisfied that the council has a right to possession. The only requirement under section 3 (1) of the Protection from Eviction Act 1977 is that the council must obtain a court order. There is no other restriction on the council's right to possession.

11

The claimant's contention is that the court cannot consider the issue of proportionality. It cannot consider the claimant's personal circumstances. Moreover, the council's power to manage its property under section 21 of the Housing Act 1985 is unfettered and not subject to any need to take account of Convention rights. In the claimant's submissions a statutory regime of this nature, which prevents the court from considering the proportionality of an eviction, cannot be compliant with the requirements of Article 8 of the Convention. Moreover, since the possession proceedings did not give the claimant the possibility of having the issue of proportionality considered by the court, there has been a breach of Article 6 of the Convention, in that he has not had a fair and proper hearing.

Kay and Doherty

12

The leading domestic authorities in this area are two decisions of the House of Lords: Kay v Lambeth London Borough Council [2006] UKHL 10, [2006] 2 AC 465 (“Kay”), and Doherty v Birmingham City Council [2008] UKHL 57, [2009] 1 AC 367 (“Doherty”).

13

Kay was a seven-judge court. It followed the decision of the House of Lords in Harrow London Borough Council v Qazi [2003] UKHL 43, [2004] 1 AC 983, and the decision of the European Court of Human Rights in Connors v United Kingdom [2004] ECHR 66746/01. In the latter the Strasbourg Court had before it the Mobile Homes Act 1983 which excluded from its protection land operated by a local authority as a caravan site for the travelling community. The court held that there was a violation of Article 8 because 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. Consequently, it could not be regarded as justified by a pressing social need or be proportionate to the legitimate aim being pursued (paragraph 95).

14

Against that background Kay has been taken to establish two gateways where it is open to a court to refrain from proceeding to summary judgment, and from making a possession order, notwithstanding that the requirements of the law have been met. These two gateways are expressed thus in Lord Hope's speech at paragraph 110:

“110 ….. (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...

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    • 27 February 2012
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1 books & journal articles
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