R (Gilboy) v Liverpool City Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Waller,Lord Justice Buxton,Lady Justice Smith |
| Judgment Date | 02 July 2008 |
| Neutral Citation | [2008] EWCA Civ 751 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2007/2538 |
| Date | 02 July 2008 |
[2008] EWCA Civ 751
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Waller
Vice-president Of The Court Of Appeal, Civil Division
Lord Justice Buxton
Lady Justice Smith and
Mr Justice Stanley Burnton
Case No: C1/2007/2538
CO/10584/2006
Jan Luba QC and Adam Fullwood (instructed by Messrs Jackson & Canter) for the Appellant
Edward Bartley Jones QC and Paul Burns (instructed by Liverpool Council Legal Services) for the Respondent
Daniel Stilitz (instructed by Treasury Solicitors) for the Interested Party
Hearing date : 19 th May 2008
This is an appeal from a decision of Stanley Burnton J (as he then was) handed down on 15 th October 2007 by which he dismissed Mrs Gilboy's claim for judicial review. It raises a single point of principle namely whether the internal review procedure for reconsideration by local housing authorities of a decision to terminate a demoted tenancy established by sections 143E-143F of the Housing Act 1996 and the Demoted Tenancies (Review of Decisions (England) Regulations 2004 violates Article 6 of the Convention on Human Rights.
Mrs Gilboy has now obtained other accommodation and the appeal is thus academic but the appeal raises a point which the respondents, the Liverpool Council and the intervening party, the Secretary of State, wish resolved. Since the point will occur in other cases, and is one of significance in the context of the legislation, we agreed to entertain it. Mr Luba QC applied thus to amend the relief that he sought to seek a declaration that the above sections were incompatible with Article 6, and there being no opposition permission was granted.
A major part of the argument involves considering the effect of a decision of the Court of Appeal, in which I gave the lead judgment, McLellan v Bracknell Forest Borough Council [2001] EWCA Civ 1510 [2002] QB 1129. In order, indeed, to set the legislation with which this appeal is concerned in its context it is helpful to start with the legislation, the subject of that decision and with that decision itself.
Both the legislation with which this appeal is concerned and the legislation with which McLellan was concerned are examples of the implementation of government policy relating to accommodation supplied by local councils and particularly with the social consequences of tenants who may behave in a way which disturbs others or demonstrates them to be persons who are not as deserving of the accommodation as others. Under the Housing Act 1985 all tenancies of dwelling houses granted by local authorities (with certain exceptions listed in Schedule 1 to the Act) are secure tenancies: see sections 79 and 80. By section 84(1) of the 1985 Act, the County Court may not make an order for possession of a house let under a secure tenancy save on certain grounds specified in that section and in Schedule 2 to the 1985 Act. The court may still, even if grounds are established, exercise a discretion against granting possession and may only do so if it is satisfied that it is reasonable to do so where the grounds in Part 1 or Part 3 are relied on. Schedule 2 includes grounds such as a tenant creating nuisance or annoyance to others. Section 85 enables the court to adjourn so as to allow for improvement and allows the court to rescind an order for possession if conditions are complied with.
McLellan was concerned with “introductory tenancies”. Introductory tenancies were part of the 1996 legislation. The object was to provide a trial period prior to a tenant becoming a secure tenant. As part of the legislation setting up introductory tenancies the Housing Act 1996 envisages a procedure whereby the landlord could take a decision to terminate the introductory tenancy so that no secure tenancy would be achieved. The landlord has to serve a notice on the tenant saying that the landlord would be asking the court to make an order for possession (section 128(1) of the 1996 Act). Section 128(3) requires the landlord to give reasons and by section 129(2) the tenant can seek a review, i.e. ask the landlord to think again. The Introductory Tenants (Review) Regulations 1997 SI No 72 lay down the procedure the landlord must follow when conducting a review including a requirement for the review to be carried out by a person more senior than the original decision-maker, a requirement for the tenant to be given 5 days notice of any oral hearing and a right for the tenant to be accompanied and to call evidence. If the original decision is upheld, apart from the possibility of seeking judicial review of the same recognised in Manchester City Council v Cochrane [1999] 1 WLR 809 CA, the decision is binding in the sense that the county court is then bound to make an order terminating the tenancy under section 127.
In McLellan the legislation and the procedure set up by it and the regulations were attacked both on Article 8 as well as Article 6 grounds. The Secretary of State, represented by Mr Philip Sales, argued on the appeal that Article 6 was not engaged by the internal review procedures, alternatively that by application of the principle that one must look at the decision-making process as a whole, including any review by the court through judicial review, exemplified by R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295, there was no violation of Article In McLellan the court decided that Article 6 was engaged but applying the “Alconbury” principle dismissed the Article 6 attack. It also dismissed the Article 8 attack which, as I shall indicate, seems to me to be of some relevance to this appeal.
The Government clearly took the view, in the context of the social problems with tenants of councils and housing associations, that it was desirable to have a system under which, if a tenant was a secure tenant but causing or responsible for causing social problems, there should be a procedure under which he could be demoted and with the consequence that once demoted he might not, unless things improved, be reinstated. By the Anti-Social Behaviour Act 2003 there was introduced the concept of a demoted tenant. The Act amended both the 1985 Act and the 1996 Act. There are distinctions between the procedure adopted for demoted tenants and those considered in McLellan for introductory tenants but essentially, subject to one important difference, the demoted tenancy scheme was modelled on the introductory tenancy scheme. The one important difference flows from the fact that a demoted tenant starts with a secure tenancy and before a tenant can be demoted the landlord must apply to the court. By Section 82A(2) of the 1985 Act a Local Housing authority may apply to the county court for a demotion order in respect of a secure tenancy. It is a condition of the making of a demotion order that the court is satisfied both that the tenant, or a person residing in or visiting the dwelling house in question, has engaged, or has threatened to engage, in anti-social behaviour or used the premises for unlawful purposes and that it is reasonable in all the circumstances to make the order. Once the order is made the secure tenancy is at an end. There is created a demoted tenancy and, as Mr Luba stressed, that tenancy will be subject to many if not all the terms of the former secure tenancy, save that it will not be a secure tenancy.
Once a tenant has become a demoted tenant, the landlord must still apply to the court for an order for possession from a demoted tenant (see section 143D(1) of the 1996 Act), but the county court must make an order unless it thinks the procedure for the termination of the demoted tenancy contained in section 143E and 143F has not been followed. In the result, once demoted the tenant is in much the same position as an introductory tenant so far as procedure is concerned. In the demoted tenancy scheme the council must have decided to terminate the tenancy and actually given notice of intent to take proceedings but must inform the tenant of the right of review. The tenant can then seek a review. If there is a request for review “the landlord must review the decision” 143F(2), and under the legislation and the regulations that review must be carried out by “a person of appropriate seniority who was not involved in the original decision”. Subject to the right to seek permission to move for judicial review, if the original decision is upheld on review a court is bound to make an order for possession.
Mr Stilitz, for the Secretary of State, compiled a schedule comparing the provisions of the 1996 Act and the relevant regulations considered in McLellan in relation to introductory tenancies with the provisions and regulations with which this appeal is concerned, dealing with demoted tenancies. Mr Luba QC, for Mrs Gilboy, wished to add some provisions and amend the schedule slightly. Mr Stilitz did not object and I append that amended schedule to this judgment. It summarises the various provisions and it is not, I think, necessary at this stage therefore to set out in full sections 143E and 143F or the regulations. They are to be found conveniently set out in full in the judgment of Stanley Burnton J at paragraphs 6 and 7.
Stanley Burnton J took the view first that he was bound to hold that Article 6 was engaged,...
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