Royal Borough of Kensington and Chelsea v O'Sullivan
| Jurisdiction | England & Wales |
| Judge | Lady Justice Arden,Lord Justice Waller,Lord Justice Aldous |
| Judgment Date | 25 March 2003 |
| Neutral Citation | [2003] EWCA Civ 371 |
| Date | 25 March 2003 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B2/2002/0634 CCRTF |
[2003] EWCA Civ 371
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON
COUNTY COURT
(His Honour Judge Green QC
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Aldous
Lord Justice Waller and
Lady Justice Arden
Case No: B2/2002/0634 CCRTF
Mr A Short (instructed by Peter Kandler & Co) for the Appellant
Mr Mark Lowe QC and Mr Richard Nall-Cain (instructed by Richard Ricks) for the Respondent/Claimant. The Respondent/1 st Defendant was not represented and did not appear.
This is an appeal against the order of His Honour Judge Green QC sitting in the Central London County Court, dated 27 February 2002, by which the court made an order that the appellant give possession of 28 Bracewell Road, London W10 ("the property") to the respondent, with execution of the order to be stayed pending determination of this appeal. This appeal is with the permission of the judge and is limited to issues under articles 8 and 14 of the European Convention on Human Rights.
Articles 8 and 14 of the Convention provide in material part as follows:-
Article 8
Right to respect for private and family life
Everyone has the right to respect for … his home.
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 … 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.
Pursuant to the section 167 of the Housing Act 1996, the respondent has adopted a Housing Allocation Scheme, which was published in November 1998. The argument in this case concerns the operation by the respondent of the following policy in this Scheme:
"Termination of a Joint Tenancy
Where one joint tenant terminates their tenancy and the remaining tenant is eligible for rehousing (i.e. in priority need as determined by the homeless persons unit), they would not be expected to move into temporary accommodation and wait for a new offer of housing. Instead a new sole tenancy can be granted for the property if it is the right size, or a transfer made to a smaller property. This discretion will not be used where the remaining tenant was violent to the departing tenant."
Background
In 1970, the Greater London Council (the GLC) granted a tenancy of the property to the appellant's husband, whom I shall call H, pursuant to an application signed by H alone. The tenancy became a secure tenancy within the meaning of the Housing Act 1985. At the time the tenancy was granted, it was common practice to grant sole tenancies to the male spouse of a married couple intending to reside in the same premises. The appellant resided at the premises as licensee of H, though she left on two occasions, returning in 1982. In l981 or 1982, the appellant was either offered or granted a tenancy in Elephant and Castle, although she did not move into this accommodation. From the time of her return in 1982, the appellant and H led separate lives but were both resident at the property. The appellant knew that she was not a tenant of the property. In 1991, H told the respondent that he did not wish the appellant to be made a joint tenant.
On 18 March 2001, H validly determined the tenancy by giving notice to quit at a time when the respondent considered on reasonable grounds that the appellant was not residing at the property and had not done so for a considerable time. The respondent "transferred" the tenancy to another smaller flat for use by H alone, that is, it granted a new tenancy of this flat to H. On determination of the tenancy of the property, the appellant became a trespasser. The judge found that the respondent was deceived by H. If the respondent had known that the appellant was also living at the property, it would not have transferred the tenancy to H's new home.
It is now common ground that at all material times the property has been the appellant's home within the meaning of article 8 of the Convention. In May 2001, the respondent applied for an order for possession of the property. On 12 May 2001, the respondent intimated to the appellant the possibility of an offer of a one-bedroomed flat but the appellant made it clear on 14 May 2001 that she wanted a two-bedroomed flat. On 27 June 2001, the respondent gave the appellant an opportunity to submit proof to them that she had been living at the property, in which case, the respondent would consider making a discretionary offer of accommodation to her. On 6 July 2001, the appellant responded to the offer and submitted some material to the respondent. On 2 August 2001, the respondent informed the appellant that it was not persuaded by the material she submitted. The judge found that this decision was not flawed as a matter of public law. The appellant continues to live on the premises to date. Apart from the Convention issues, the appellant has no right to continue in possession of the property. The powers of the court are those contained in section 3 of the Protection from Eviction Act 1977 and section 89 of the Housing Act 1980. Section 3 of the 1977 Act makes it unlawful for a landlord of a dwelling house to enforce his right to possession against an occupier except by taking proceedings. Section 89 of the 1980 Act provides that where, as in this case, the court is exercising a non-statutory discretion to fix the date when possession is to be given, the period between the date of the order and the date for giving possession must not exceed fourteen days unless exceptional hardship is shown.
The judgment of HHJ Green QC
Following a three day trial, the judge gave a reserved decision, which carefully analysed the various issues. On article 14 of the Convention, the judge held that the respondent would not have refused to grant a joint tenancy to the appellant and therefore article 14 was not engaged:
"Now if the Council had told a woman after the passage of the Human Rights Act 1998 that they refused to grant a joint tenancy to her because she was a woman, I would find the Article clearly engaged. That is not the case. The highest Mr Short can put it is that back in 1970, it was common practice to grant tenancies to husbands alone. It is not suggested that the wife asked to be a joint tenant and the Council refused. On all the evidence it seems likely that her husband would have refused. Years later, he certainly said that he did not want her to be a joint tenant. Moreover, social conditions have changed since 1970. If I am wrong about that, I nevertheless conclude that there is no factual basis on the evidence for finding that Article 14 is engaged" (judgment, paragraph 10).
The judge then turned to article He held that the property was the appellant's home for the purpose of article 8 (a point which is not now in issue). Accordingly, he turned next to article 8(2). In the course of his judgment he referred to the decision of the Court of Appeal in Poplar Housing and Regeneration Community Association Ltd v Donoghue [2001] 3 WLR 193. He held that on the basis of that authority it was necessary for him to find all the necessary facts relating to the wife's circumstances, but that in applying those facts to article 8(2) he did not require detailed evidence as to the wider issues referred to in article 8(2). He concluded that the relevant question was whether the grant of an order for possession was necessary and proportionate in relation to the respondent's object, namely the fair and rational administering of its housing stock under both Part VI and Part VII of the Housing Act 1996. Part VI is concerned with the general housing register and the allocation of accommodation by a local authority. I interpolate that Section 167(8) of the 1996 Act provides that a housing authority shall not allocate housing accommodation except in accordance with its allocation scheme. Part VII of the 1996 Act deals with the provision of accommodation of homeless persons.
There was no suggestion before the judge that the respondent's actions could have been the subject of a successful application for judicial review. The judge expressed the view that there was no doubt but that the respondent passed the conventional Wednesbury test of reasonableness and rationality:—
"On what it knew, it was entirely reasonable to accept the surrender and to grant the husband a new tenancy followed by these proceedings against the wife for possession. It knew nothing of the wife's presence until they went to board the place up." (judgment, paragraph 16).
The judge rejected the argument that section 3 of the Protection from Eviction Act 1977 was incompatible with the Convention. It was common ground before the judge that under domestic law the judge had no alternative but to grant a possession order of up to a maximum of six weeks and also that the respondent was a public authority for the purpose of the Human Rights Act 1998. The judge considered that, where primary legislation conferred no discretion on the court to refuse to make a possession order, no question arose under article 8(2).
However, in case that view was wrong, the judge proceeded to...
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