Salford City Council & others v Mullen & others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Waller,Lord Justice Patten |
| Judgment Date | 30 March 2010 |
| Neutral Citation | [2010] EWCA Civ 336 |
| Docket Number | Case No: (1) B5/2010/0230, (2) B5/2009/1247, (3) B5/2009/2054, (4) B5/2009/2615 and (5) B5/2009/1389 BF03223 9LS51001 8BM72475 8MA12310 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 March 2010 |
[2010] EWCA Civ 336
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM (1) THE HIGH COURT OF JUSTICE
(2) BRENTFORD COUNTY COURT
(3) LEEDS COUNTY COURT
(4) IN BIRMINGHAM COUNTY COURT
(5) IN MANCHESTER COUNTY COURT
QUEEN'S BENCH DIVISION MANCHESTER DISTRICT REGISTRY
Mr Justice McCombe
Deputy District Judge Shelton
His Honour Judge J Spencer QC
District Judge Gailey
His Honour Judge Raynor QC
Before: Lord Justice Waller
Vice President of the Court of Appeal
Lady Justice Arden
and
Lord Justice Patten
Case No: (1) B5/2010/0230, (2) B5/2009/1247, (3) B5/2009/2054, (4) B5/2009/2615 and (5) B5/2009/1389
9SF03930
BF03223
9LS51001
8BM72475
8MA12310
(1) The Respondent was not represented
Jan Luba QC and Paul Whatley (instructed by Glaisyers Solicitors) for the Appellant
(2) Kelvin Rutledge (instructed by Corporate Services LB Hounslow) for the Respondent
Jan Luba QC and Kevin Gannon (instructed by Scully & Sowerbutts Solicitors) for the Appellant
(3) Ashley Underwood QC and Helen Greatorex (instructed by Leeds City Council Legal Department) for the Respondent
Jan Luba QC and Adam Fullwood (instructed by Zermansky & Partners) for the Appellant
(4) Jonathan Manning (instructed by Legal Services Birmingham City Council) for the Respondent
Jan Luba QC and Michael Singleton (instructed by Evans Derry Binion Solicitors) for the Appellant
(5) Jan Luba QC and Adam Fullwood (instructed by Platt Halpern Solicitors) for the Respondent
Jon Holbrook (instructed by City Solicitor, Manchester City Council) for the Appellant
Daniel Stilitz QC and Ben Hooper (instructed by Treasury Solicitors) for the Intervener
Hearing dates: 16 th– 19 th March 2010
Lord Justice Waller:
Introduction
This is the judgment of the court in five appeals heard by us between 16 th and 19 th March 2010. They were listed and heard together because they raise points of considerable concern to Judges and District Judges hearing possession proceedings brought by local authorities, particularly in cases where the occupiers have no security of tenure under statutory schemes relating to social housing. The points arise from difficulties that those advising parties and the judges are having in interpreting guidance given in two decisions of the House of Lords (not, it should be said, concerned at least directly with such schemes) 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”). The points arise in a number of different contexts depending on the statutory scheme or the type of non-secure tenant. There is at present listed before the Supreme Court Pinnock v Manchester City Corporation (“ Pinnock”) [2009] EWCA Civ 852; [2010] 1 WLR 713, due to be heard in July before a panel of 9 Supreme Court Justices. The size of the panel would indicate that the guidance in Kay and Doherty will be looked at again. In Pinnock they will consider the position in the context of occupiers who were “demoted tenants”. These five appeals are concerned with occupiers who were either “Introductory tenants” or provided with accommodation as “homeless persons”. Rather than stay these appeals pending the decision in Pinnock the Court of Appeal was persuaded that it might assist in the resolution of the problems if the Supreme Court had before it occupiers other than a “demoted tenant”. It follows that it is important that we produce a judgment with some urgency. A further purpose of the judgment is to provide guidance as quickly as possible to the courts dealing with these cases on a regular basis to assist them with the many cases that they will have to deal with in the period between now and such time as the judgments of the Supreme Court are available. To achieve this purpose, much of the detail about the background to the present state of the law has been omitted.
We will use in large measure the skeleton argument of Mr Stilitz QC who appears for the Secretary of State who has intervened in these appeals and intervenes in Pinnock to set the scene and identify the issues. This is not intended as any slight on others but is selected because it contains much material set out in a way we do not understand to be contentious and which we can simply adopt in the interest of speed. We should say in addition that we were particularly grateful to Mr Luba QC who has appeared for the occupiers who provided us with house-keeping notes to help us with preparation and orchestrated the agreement of issues. He also conducted the appeal for the occupiers with his customary clarity and realism. We are also grateful to all other counsel who prepared extremely helpful skeletons and conducted the oral hearing with commendable brevity and realism in light of the authorities binding on the Court of Appeal.
Background
Article 8(1) of the European Convention on Human Rights (“the ECHR”) grants every person the right to “respect” for his “home”. However, for this purpose, the scope of the term “home” is not determined solely by reference to rights under domestic law. If a person has lived in premises as his home for a sufficient period, those premises may be his “home” for Article 8 purposes even if he has no domestic law right to remain in occupation. It follows that where premises constitute a “home”, a possession order in favour of a local authority will amount to an “interference by a public authority” with Article 8 rights within the meaning of Article 8(2), even if the occupier has no domestic law right to remain. Further, by Article 8(2), such an “interference” will breach Article 8 unless (among other things) it is proportionate, having regard to the aim pursued.
There is therefore the possibility, at least in principle, that the grant of an order for possession of a person's “home” will breach Article 8 by being, in all the circumstances, disproportionate. This possibility has given rise to the two House of Lords decisions Kay and Doherty by which we are bound but which may be about to be reconsidered in Pinnock. In each case, the majority rejected the argument that the county court should itself rule on whether a possession order would be a proportionate step under Article 8(2). Instead in paragraph [110] of his leading majority speech in Kay, Lord Hope limited the circumstances in which a county court might decline to make a possession order (that domestic law otherwise required) to two situations:
1 First, if it is seriously arguable that the law which enables the county court to make the possession order is itself incompatible with Article 8 (so-called “gateway (a)”). None of the parties seek to rely on gateway (a) in this Court in these appeals. In the introductory tenancy appeals (i.e. Hall v. Leeds City Council, Frisby v. Birmingham City Council and Mullen v. Salford City Council) any such argument is precluded in this Court by R (McLellan) v. Bracknell Forest Borough Council [2001] EWCA Civ 1510 [2002] QB 1129, per Waller LJ at [67]. In relation to the “homeless” appeals (i.e. HounslowLBC v Powell, and Manchester City Corporation v Mushin) any such argument is precluded in this court by Sheffield CC v Smart [2002] EWCA Civ 4 [2002] HLR 34 particularly per Laws LJ at [39–40].
2 The second situation, known as “gateway (b)”, arises “if the defendant wishes to challenge the decision of a public authority to recover possession as an improper exercise of its powers at common law on the ground that it was a decision that no reasonable person would consider justifiable”. If the point is “seriously arguable”, paragraph [110] would suggest in general terms that a gateway (b) defence of this form is permitted to be raised in the County Court. Gateway (b) as defined by Lord Hope in Kay was further refined in Doherty [52–55]. The five occupiers in these appeals each sought to raise a gateway (b) defence in the possession proceedings in the County Court. The question whether there is a “public law “defence and if so its scope and whether it can be raised in the County Court is a major problem for advisers, District Judges and Circuit Judges in dealing with possession actions in the County Courts.
In the case listed in the Supreme Court in July this year, (Pinnock), the Court of Appeal ruled in relation to demoted tenants that that statutory scheme precluded the raising of a gateway (b) defence in the County Court. If a demoted tenant was to make an attack on the decision of the local authority to take possession proceedings it could only do so via the traditional judicial review process in the Administrative Court, persuading a County Court to adjourn the possession proceedings for that purpose if necessary. The Court of Appeal went on to consider in the alternative the width of gateway (b) and ruled in that case that Mr Pinnock had not established such a defence. If Pinnock is correctly decided (and it cannot be challenged before us) it is important for advisers, District Judges and Circuit Judges to know in which instances a gateway (b) defence is available in the County Court and in which not. It is also important to be clear as to the scope of a gateway (b) defence in relation to the different types of...
To continue reading
Request your trial
-
Powell and Others v Mayor and Burgesses of the London Borough of Hounslow and Others
...[2011] UKSC 8 THE SUPREME COURT Hilary Term On appeal from: [2010] EWCA Civ 336 Lord Phillips, President Lord Hope, Deputy President Lord Rodger Lord Walker Lady Hale Lord Brown Lord Collins Mayor and Burgesses of the London Borough of Hounslow (Respondents) and Powell (Appellant) Leeds Ci......
-
Manchester City Council v Pinnock (Secretary of State for Communities and Local Government intervening)
...of the grounds on which possession is being sought, and an opportunity to challenge those grounds. 59 The conjoined appeals in Salford City Council v Mullen [2010] EWCA Civ 336, which are due to be heard by this Court later this month, involve possession orders made in different and more c......
-
Southend-on-Sea Borough Council v Armour
...on Mr Hall. He again requested a review, but this time the review hearing upheld the service of the notice. The Court of Appeal ( [2010] EWCA Civ 336; [2011] 1 All ER 119) held that Mr Hall's case that the order was disproportionate was unarguable. The court said at [79] that: "… there is n......
-
Mr Brian Holmes v Westminster City Council
...owner to enforce possession otherwise than by proceedings in court: see s.3(1) and s.It was pointed out in the Court of Appeal in Mullen v Salford City Council [2010] HLR 35 at [18]: "Subject to the right to a review in circumstances where the local authority decides that its homelessness d......