Sheffield City Council v Smart; Central Sunderland Housing Company Ltd v Wilson

JurisdictionEngland & Wales
JudgeLord Justice Laws,Lord Justice Kay,Lord Justice Thorpe
Judgment Date25 January 2002
Neutral Citation[2002] EWCA Civ 4
Docket NumberCase Nos: B2/2001/1402 & B2/2001/2166
CourtCourt of Appeal (Civil Division)
Date25 January 2002

[2002] EWCA Civ 4

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM SHEFFIELD COUNTY COURT

(HH JUDGE BARTFIELD) & SUNDERLAND COUNTY

COURT (HH JUDGE WALTON)

Royal Courts of Justice

Strand,

London, WC2A 2LL

Before

Lord Justice Thorpe

Lord Justice Laws and

Lord Justice Kay

Case Nos: B2/2001/1402 & B2/2001/2166

Sheffield City Council
Respondent
and
Emma Smart
Appellant
and
Central Sunderland Housing Company Limited
Respondent
and
Janette Wilson
Appellant

Ashley Underwood QC & Tom Tyson (instructed by Sheffield City Council for the 1 st Respondent)

Jan Luba QC & Liz Davis (instructed by Irwin Mitchell for the 1 st Appellant Emma Smart)

Ashley Underwood QC & Richard Merrit (instructed by Central Sunderland Housing Company Limited Legal Services for the 2 nd Respondent)

Jan Luba QC & Beatrice Prevatt (instructed by Ben Hoare Bell for the 2 nd Appellant Janet Wilson)

Lord Justice Laws

Introductory

1

These two appeals, which we have heard together, arise out of possession proceedings respectively in the Sheffield and Sunderland county courts. They require us to consider the impact of certain aspects of the European Convention on Human Rights ("ECHR") upon the letting of a dwelling house under a non-secure tenancy to a homeless person and the subsequent termination of the tenancy by the public authority landlord.

2

In the Sheffield case the appellant/defendant was granted a tenancy of premises at 14 Daresbury Place, Sheffield on 18 October 1999. The respondent/claimant, the Sheffield City Council, served a notice to quit upon her on 30 August 2000, thus terminating her contractual tenancy 28 days later. The respondent issued possession proceedings on 4 October 2000. After a contested hearing His Honour Judge Bartfield made an order for possession on 7 June 2001, and on the same day granted permission to appeal to this court.

3

In the Sunderland case, the appellant/defendant was granted a tenancy of premises at 9 Fell Road, Ford Estate, Sunderland on 11 October 1999. The Sunderland City Council (predecessors of the respondents, the Central Sunderland Housing Company Limited) served a notice to quit upon her on 9 August 2000, and so her contractual tenancy was determined 28 days thereafter. Possession proceedings were commenced on 21 September 2000. Again there was a contested hearing in the county court. On 24 September 2001 His Honour Judge Walton made an order for possession but refused permission to appeal. Permission was granted by Robert Walker LJ on 6 November 2001.

The facts

4

The circumstances of the two cases are similar. Each appellant had become homeless unintentionally within the meaning of Part VII of the Housing Act 1996 ("HOUSING ACT 1996") (or was taken to have done so). Each sought accommodation from her local housing authority. Accepting in each case that the appellant was unintentionally homeless, the authority owed a duty to provide her with accommodation. Each appellant was granted a non-secure tenancy of accommodation under HOUSING ACT 1996 s.193. I shall set out or summarise the relevant statutory materials and authorities in due course.

5

In both cases complaints of nuisance were made by the appellants' neighbours. In Sheffield, the complaints started in January 2000. On 19 July 2000, on her birthday, the appellant got drunk. Neighbours asked her to turn her music down. The respondent wrote to her on 20 July 2000 warning that "any further incidents of nuisance will result in the Housing Department requesting possession of your flat". Her neighbours complained of another incident in the early hours of the morning of 5 August 2000. She disclaimed responsibility for that, but in the event the respondents served a notice to quit, as I have said, on 30 August 2000.

6

In Sunderland, the first complaint seems to have been on 12 October 1999, one day after the tenancy commenced. Thereafter there were other complaints, in particular to the effect that youths were congregating about the premises in a way which upset other residents. There was a written complaint on 23 May 2000. On 24 May 2000 the appellant was interviewed by a housing officer. After more complaints she was interviewed again on 4 July 2000, and on 6 July 2000 the respondent's Safer Estates Task Force wrote to the appellant indicating that a notice to quit would be served if there were any more complaints. Unfortunately, there were more complaints in August 2000; and as I have said a notice to quit was served on 9 August 2000. It was accompanied by a letter giving the reasons for the notice by reference to the complaints which had been received. I should say that at the trial before His Honour Judge Walton counsel for the respondent did not challenge evidence put forward by the appellant to the effect that in fact she had not been involved in the disturbances which had given rise to the complaints against her. The respondent's case was that the council had acted reasonably on the information before them, whether in the event the complaints had been true or not.

Common Ground

7

The following propositions are common ground:

i) In the absence of the Human Rights Act 1998 (" HRA") neither appellant would have had a defence to the respondent's claim for possession.

ii) Both respondents, and the court below and this court, are public authorities within the meaning of s.6 HRA.

iii) Each respondent's decision to serve a notice to quit was amenable as a matter of jurisdiction to the supervision of the High Court by way of judicial review.

iv) Although in each case the notice to quit (and in the Sunderland case the issue of possession proceedings) ante-dated the coming into force of HRA on 2 October 2000, the appellants may rely on the Convention rights to the extent that their points are good ones on the merits.

HRA

8

The material provisions of HRA are as follows:

"2(1) A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any —

(a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights, …

6(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

(2) Sub-section (1) does not apply to an act if —

(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently:

or

(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.

(3) In this section 'public authority' includes —

(a) a court or tribunal,

(b) any person certain of whose functions are functions of a public nature,

(c) but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.

….

7(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may —

(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or

(b) rely on the Convention right or rights concerned in any legal proceedings,

but only if he is (or would be) a victim of the unlawful act.

…..

8(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy or make such order within its powers as it considers just and appropriate.

….

22(4) Paragraph (b) of subsection (1) of section 7 applies to proceedings brought by or at the instigation of a public authority whenever the act in question took place; but otherwise that subsection does not apply to an act taking place before the coming into force of that section."

….

9

The Convention rights are set out in Part I of Schedule 1 to HRA. I should cite the following:

"Article 6

1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…

Article 8

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

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 FIRST PROTOCOL

Article 1

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."

The housing legislation

10

I should next set out or describe the relevant provisions of the housing legislation. There is first an important general provision. ...

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