R NECKEESHA ERSKINE v London Borough of LAMBETH and
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MITTING |
| Judgment Date | 14 October 2003 |
| Neutral Citation | [2003] EWHC 2479 (Admin) |
| Date | 14 October 2003 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/1136/2003 |
[2003] EWHC 2479 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand London WC2
Mr Justice Mitting
CO/1136/2003
MR S KNAFLER (instructed by ANTHONY GOLD SOLICITORS) appeared on behalf of the CLAIMANT
MR M HUTCHINGS (instructed by LEGAL SERVICES DEPARTMENT, LONDON BOROUGH OF LAMBETH) appeared on behalf of the DEFENDANT
MR J KARAS (instructed by TREASURY SOLICITOR) appeared on behalf of the INTERESTED PARTY
Tuesday, 14th October 2003
On 3rd August 1998 London Borough of Lambeth granted a secure tenancy of a 2 bedroom maisonette on the upper two floors of 137 Fenwick Place, SW9, to the claimant. The kitchen was equipped with a sink, fixed storage cupboards and working surfaces, a gas cooker and hob, a washing machine and a fridge-freezer.
The flat was and is home for the claimant and her two children now aged 5 and 1. It was inspected by Denise Williams, a member of the Chartered Institute of Environmental Health on 26th October 2002. She concluded that the current layout of the kitchen was unsafe and rendered the flat unfit for human habitation. She expanded upon her reasons in a letter of 28th March 2003.
Her conclusions were based on the positioning of the electrical sockets in relation to the fixed worktops. On the wall against which the gas cooker now stands there is a single 3 pin socket, part of a cooker point for an electric cooker no longer installed. Two fixed worktops run at 90 degree angles to each other, on either side of the cooker, one of them to a sink. On the opposite wall, out of safe reach of the worktops, is a double socket. The claimant runs an electric kettle, a toaster, a television, and when in use, a washing machine, from a gang socket hanging freely from a single plug inserted into the cooker point socket. The double socket is unused.
Miss Williams condemns the set up as, "extremely dangerous" especially in a flat occupied by two young children, for the obvious reason that one or more of the electrical appliances may become dislodged if the flex is caught by the claimant or by one of her children, and if so, may cause scalding or other injuries.
The claimant complained about the matter to Lambeth Borough Council in the midst of possession proceedings brought against her for alleged non payment of rent in Lambeth County Court. The Borough Council's surveyor reported on 25th November 2002 that the provision of extra sockets would be an improvement and not a repair. The claimant accepts that, as far as it goes, that is correct. The sockets and worktop are in the position in which they were at the commencement of her tenancy. Any alteration in the position of them would therefore be an improvement rather than a repair.
Though Miss Williams does not say so expressly it is implicit from her report that she considers that the kitchen fails to satisfy the statutory test of fitness for habitation on ground (f) in section 604(1) of the Housing Act 1985 which provides:
"… a dwelling-house is fit for human habitation for the purposes of this Act unless, in the opinion of the local housing authority, it fails to meet one or more of the requirements in paragraphs (a) to (i) below and, by reason of that failure, is not reasonably suitable for occupation…
(f) there are satisfactory facilities in the dwelling-house for the preparation and cooking of food, including a sink with a satisfactory supply of hot and cold water."
In the claimant's preaction protocol letter of 27th November 2002 the claimant requested Lambeth Borough Council to provide and fit a double electric socket above the fixed worktop beside the cooker, and a fixed socket for use with the fridge-freezer, at present powered by a flex plugged into a socket in the living room just outside the kitchen.
Lambeth Borough Council took no decision until after the filing of the claim for judicial review. Mr Rance, the team leader for Estate Management in North Clapham, wrote to the claimant's solicitors on 18th March 2003 stating that in his view the flat was not unfit, on ground (f), because there were adequate facilities for the preparation and cooking of food. In his view the claimant's real complaint was that there were an inadequate number of electric sockets and the danger, which he implicitly acknowledged, arose from the means used by her to overcome that inadequacy. He withdrew an offer previously made by the Borough Solicitor to move the sockets if the claimant abandoned her claim for judicial review.
The following is common ground: first, Lambeth Borough Council is not obliged at common law or by virtue of statutory covenants to move the sockets or provide extra sockets. As to the common law there is no obligation because the flat was let unfurnished and in any event there is no continuing obligation to keep it in repair throughout the tenancy. As to section 11 of the Landlord and Tenant Act 1985, the sockets are in repair and working order themselves. As to contractual covenants, they follow section 11 and impose no additional obligation.
Secondly, if Lambeth Borough Council were satisfied that the flat was unfit for human habitation on ground (f) it could serve a notice under section 189(1) of the Housing Act 1985 on any person, other than itself, having control of the premises. Such a notice could require prompt repair. It could also serve a deferred action notice under section 81 of the Housing Grants, Construction and Regeneration Act 1996. It could, alternatively, make closing or demolition orders, or declare the whole area a clearance area under other provisions of the 1985 Housing Act. It could not, however, serve a notice under section 189 on itself. That limitation stems from a decision of the Court of Appeal in the R v Cardiff County Council ex parte Cross [1982] 6 H.L.R. 1, that as a matter of construction a local housing authority could not serve a section 189 notice on itself.
Thirdly, Lambeth Borough Council has the power, under section 9(2) of the Housing Act 1985, to improve the flat by repositioning the sockets or installing additional sockets.
The principal live issue in the case is whether or not the claimant's rights, under the European Convention on Human Rights Articles 8 and 14 taken together, have been infringed in the circumstances which I have described.
Section 189(1) of the 1985 Act provides, relevantly, that:
"… where the local housing authority are satisfied that a dwelling house… is unfit for human habitation, they shall serve a repair notice on the person having control of the dwelling house…"
The claimant contends that her Convention rights have been infringed because Part VI of the Housing Act 1985, and in particular section 189, enact a different enforcement regime for tenants of a local housing authority from that which applies to tenants of other landlords, in particular private landlords and housing associations. A tenant of the latter can invite the local housing authority to consider whether to serve a notice under section 189. A tenant of the local housing authority cannot. She found herself on Articles 8 and 14 taken together. They provide:
"Article 8: 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.
"Article 14: Prohibition of Discrimination.
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
The rights said to be engaged are the right to private and family life and to home, and in particular the enjoyment of those rights without discrimination on the ground of status as a tenant of the local housing authority. Strasbourg jurisprudence establishes that Article 8, read with Article 14, imposes on a state both positive and negative obligations: first, not to interfere with the exercise of the right to private and family life and home, subject to the exceptions stated in Article 8.2; secondly, to take steps, for example, putting in place a suitable legal framework, to secure those rights (see for example Lopez Ostra v Spain 20 E.H.R.R. 277, paragraph 51); thirdly, to do so without discrimination on the grounds stated in Article 14.
The case law also establishes that though Article 14 has no independent existence its application does not presuppose a breach of the substantive guarantees afforded by the Convention. This was first explained in the Belgian Linguistics Case (No.2) [1968] 1 E.H.R.R 252, paragraph 9:
"While it is true that this guarantee [that is to say the guarantee under Article 2 of the First Protocol of the Convention] has no independent existence in the sense that under the terms of Article 14 it relates solely to 'rights and freedoms set forth in the Convention', a measure which in itself is in conformity with the requirements of the Article enshrining the...
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