R (Gangera) v Hounslow London Borough Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice: Moses |
| Judgment Date | 11 April 2003 |
| Neutral Citation | [2003] EWHC 794 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 11 April 2003 |
| Docket Number | Case No: CO/5700/2002 |
[2003] EWHC 794 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
The Honourable Mr Justice Moses
Case No: CO/5700/2002
Case No: CO/1140/2003
Mr Zia Nabi (instructed by Sweetman, Burke and Sinker) for the Claimant
Mr Matthew. Hutchings (instructed by The Borough of Hounslow) for the Defendant
Mr Jonathan Karas (instructed by The Treasury Solicitor) for the First Secretary of State
Introduction
The claimant is subject to immigration control and is, thus, not eligible for assistance as a homeless person. He looked after his parents while living with them in their home occupied by them as secure tenants. He is not entitled to succeed to that tenancy. The Council seeks an order for possession.
The claimant resists on two grounds. He says that the rules of succession infringe Article 14 read with Article 8 of the Convention. Secondly, he asserts that to seek an order for possession is disproportionate and irrational at a time when, threatened as he is with eviction, his needs have not been assessed under Section 21 of the National Assistance Act 1948. This case raises a third issue: whether the issues of proportionality and rationality can be raised as a defence to possession proceedings in the County Court.
Facts
Mr Gangera entered the United Kingdom as a visitor from Tanzania on the 30 th June 1989. He went to live with his parents at premises in Heston, Middlesex owned by the London Borough of Hounslow ("the Council"). Those premises were let to both his parents under a joint weekly secure tenancy. He cared for his father who developed prostate cancer and died on 8 th December 1995. His mother then succeeded to the secure tenancy and the claimant remained there, caring for his mother until she died on 10 th June 2001. She died intestate.
The claimant is in poor health. He has itchy skin and cannot bathe. He suffers from a blood disorder which is being investigated. He has numbness of his right leg which causes him difficulty when walking. He suffers from non-insulin diabetes, hypertension and liver disease. He also suffers from depression.
After the claimant's mother died, on 22 nd November 2001 the Council's housing department told the claimant that he was not entitled to succeed to her tenancy and asked him to vacate on expiry of the notice to quit. On 11 th December 2001 a second deportation order was made against the claimant (the first had been made in September 1994) and the claimant applied for leave to remain in the United Kingdom relying on Article 8 of the European Convention on Human Rights. This claim was rejected by the Secretary of State for the Home Department. He has appealed against that decision but the appeal has not yet been determined.
On 23 rd January 2002 the Council served notice to quit at the premises in Heston and on the public trustee. On 29 th April 2002 a possession claim was issued in the Brentford County Court. On 31 st May 2002 the claimant requested the Council's Social Services Department to provide support and financial assistance. A hearing of the possession action was due on 20 th June 2002. On 11 th June 2002 the Council's housing advisor wrote on behalf of the claimant requesting an adjournment of the proceedings pending the decision of the Home Office as to the claimant's status. It was hoped that the application would be resolved by the Home Office within three to four months and the adjournment was requested for that period of time.
There was some dispute as to what happened in response to the request for an adjournment pending resolution of the claimant's immigration status. It is of some, although limited, significance in relation to the claimant's assertion that it is disproportionate and irrational for the Council to pursue the possession proceedings before assessing whether the claimant's needs are such that he should be provided with accommodation pursuant to Section 21 of the National Assistance Act 1948. Juliet James-Lionel, the District Manager of Hounslow Homes Ltd, a company controlled by the Council said that she was prepared to agree to an adjournment of the possession proceedings for a limited period provided that the claimant made a payment of £300 by 19th June and thereafter paid the weekly use and occupation charge and £5 off the arrears. She said she did not agree to withdraw the possession claim or to have it adjourned generally. (See paragraph 9 of her witness statement). The claimant, in any event, failed to make the payment, the hearing went ahead on 20 th June 2002 and was then adjourned, on the application of the claimant's solicitor until 18 th October 2002 so that the claimant could file a full defence.
On 28 th June 2002 the Council undertook an assessment of the claimant pursuant to Section 47 of the National Health Service and Community Care Act 1990 ("the 1990 Act"). It was conducted by Teresa North, a social worker from the social services department of the Council. She said that at the time of the assessment she was aware that the possession application had been adjourned until October 2002 but mistakenly believed that was a result of the agreement. The assessment recorded that one of the reasons for referral was that the claimant was due to be evicted for non-payment of rent. It also recorded that the possession case had been adjourned and:-
"Original tenancy in mother's name Mr Gangera (sic) has remained in residence and can continue to remain if rent is paid."
Teresa North says that even if the true facts of the adjournment had been known it would not have made any material difference to the outcome of her assessment. She took the view that the claimant fell within the lowest priority group within the Council's eligibility criteria and was entitled to be provided with information and guidance but did not attain the threshold for entitlement to accommodation pursuant to Section 21 of the 1948 Act. Unfortunately her assessment was not forwarded until 14 th November 2002. She accepted that the claimant's circumstances might change as a result of the hearing in October 2002 and that a reassessment might be required.
On 9 th December 2002 the possession claim in respect of which a defence and counter-claim had been filed, was transferred by consent to the Administrative Court. Following that transfer Maurice Kay J. directed that the claimant should issue fresh proceedings for judicial review. This he has done. The matter comes before me as an application for permission with the substantive hearing to follow if permission is granted. I have heard full argument not only from the Council but also from the First Secretary of State, who is concerned particularly with the argument that the provisions relating to security of tenure in respect of local housing authorities' dwelling-houses are incompatible with the Convention.
The Statutory Scheme
i. Security of Tenure for Secure Tenants.
Part IV of the Housing Act 1985 ("the 1985 Act") creates a scheme restricting a landlord's right to end a "secure tenancy". Section 79 of the 1985 Act defines a secure tenancy as a tenancy under which a dwelling-house is let as a separate dwelling when the "landlord condition" and "tenant condition" are satisfied. Section 80 provides that the landlord condition is satisfied when the interest of the landlord belongs to the local authority (or other bodies providing housing to meet public needs). Section 81 provides that the tenant provision is satisfied when a tenant is an individual and occupies the dwelling house as his only or principal home. It is important to note that Section 79 has effect subject to Sections 89(3) and (4) and 90(3) and (4) (tenancies ceasing to be secure after death of tenant) (see Section 79(2)).
A secure tenancy cannot be brought to an end by the landlord save by obtaining an order from the court pursuant to Section 82 of the 1985 Act. Unless the court considers it is just and equitable to dispense with the requirement, the court cannot entertain proceedings for an order bringing the secure tenancy to an end unless the prescribed notice specifying the grounds on which an order is sought has been served (see Section 83). No order for possession may be made save on one or more of the grounds identified in Schedule 2 to the Act. Moreover, the court's power to make an order for possession is further restricted having regard to the nature of the ground on which reliance is placed. If reliance is placed upon the grounds 1 to 8 within Part 1 of the Schedule the court can only make an order if it considers it reasonable to do so, if the ground is contained within Part 2 of the Schedule (grounds 9 to 11) it cannot make an order unless it is satisfied that suitable accommodation will be available to the tenant when the order takes effect and if the ground is set out in Part 3 of the Schedule (grounds 12 to 16) the court must be satisfied both that it is reasonable to make the order and that suitable accommodation is available.
By virtue of Section 85(2) the court may on the making of an order for possession on any of the grounds set out in Part 1 or Part 3 of Schedule 2 or at any time before the execution of the order either stay or suspend its execution or postpone the date of possession for such period or periods that the court thinks fit.
(ii) Succession to a secure tenancy.
Part IV of the 1985 Act contains a detailed code under which members of a secure tenant's family may succeed to the secure tenancy. Section 87 ...
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