Aleisha WACEY- GERMAINE v the United Kingdom - 71308/10 [2011] ECHR 806 (23 May 2011)

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Application no. 71308/10
by Aleisha WACEY-GERMAINE
against the United Kingdom
lodged on 15 November 2010

1. The applicant, Ms Aleisha Wacey-Germaine, is a British national who was born in 1986 and lives in Luton. She is represented before the Court by Mr M. Gill, a lawyer practising in Watford.

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

3. On 3 January 2006 the applicant applied to Luton Borough Council (“LBC”) for assistance as a homeless person pursuant to Part 7 of the Housing Act 1996 (see “Relevant domestic law and practice” below). At the time she had one son, born in July 2005.

4. By agreement dated 6 January 2006, LBC granted the applicant a non-secure tenancy which commenced on 9 January 2006.

5. By letter dated 11 January 2006 LBC accepted that they owed a full housing duty to the applicant under section 193(2) of the Housing Act 1996 to secure suitable accommodation for her and her dependants.

6. On 13 August 2009 LBC served on the applicant a notice to quit the property on 14 September 2009. The notice itself gave no reasons for the decision of LBC to seek possession of the property.

7. On 18 November 2009 LBC issued possession proceedings in Luton County Court. In its claim form, LBC indicated that the grounds for possession were that a notice to quit had been served by the local authority on 13 August 2009. In the section of the form which allowed further information regarding the defendant's circumstances to be provided, LBC noted:

“At the date of expiry of the notice to quit on 14^th September 2009 the rent was £ 9,397.01 in arrear[s] ....”

8. The applicant defended the proceedings on several grounds, including that the proceedings gave rise to a breach of her rights under Articles 6 and 8 of the Convention. She indicated that she was a single mother of a four-year old child and was about to give birth to her second child; that the family had lived at the property for four years and had no other home to go to; and that if they were evicted there was a risk that her children would be separated from her and placed in foster care as a result of the local authority's obligation to accommodate them. She further noted that LBC had not notified her that its obligation to secure suitable accommodation for her and her family had ceased and had not offered alternative accommodation. She explained that the rent arrears had accrued partly due to problems sorting out her housing benefit and that, although they were large, she could pay them off over time. Finally, she requested a suspension of any possession order for more than the six weeks permitted by law.

9. The claim was heard on 11 May 2010. The applicant was unable to attend the hearing for medical reasons but she was legally represented. The arrears at the date of the hearing were GBP 14,785.25, which represented just under two years' rent arrears.

10. In his judgment, District Judge White noted that there was no evidence before him that would persuade him that the rent arrears were going to be paid within a reasonable period. He further observed that there was no evidence of a backdated claim for housing benefits. The facts that the applicant was absent from the hearing due to medical problems and that she was due to give birth imminently were not, in the judge's view, exceptional circumstances justifying a contested hearing in which the applicant could argue her Article 8 defence. The judge further noted that no decision had yet been taken in relation to homelessness and that if the local authority refused to accommodate the applicant she would have a further appeal process in this respect.

11. The judge ordered the applicant to give possession to LBC on or before 22 June 2010, the latest date on which he could order possession given the six-week limitation on suspending possession orders under the applicable legislation. He refused leave to appeal.

13. On 1 June 2010 the applicant lodged an application for leave to appeal. She argued that the possession order had been made in breach of her rights under Articles 6 and 8 of the Convention.

14. On 26 August 2010 permission to appeal was refused on the papers on the ground that the district judge had considered the relevant authorities and that his decision was not arguably wrong. On 31 August 2010 the applicant applied to renew her request for leave at an oral hearing.

15. In the meantime, LBC applied to the court for a warrant for possession. On 8 September 2010 a notice of eviction was given for 10 September 2010.

16. An oral hearing on the applicant's request for leave took place on 10 September 2010 and was adjourned to 13 October 2010. The warrant was stayed pending the decision.

17. At a number of the hearings in the possession proceedings, bailiffs were in attendance and ready to evict the applicant in the event that the stay against eviction was not continued by the court.

19. In or around December 2010 the applicant surrendered her tenancy as, with two young children, she felt unable to cope with the stress and uncertainty created by the possession proceedings.

20. Part 7 of the Housing Act 1996 (“the 1996 Act”) sets out the powers and duties of local housing authorities in England and Wales in relation to homeless people and their dependents. Where the local authority is satisfied that a person is homeless and did not become homeless intentionally, is eligible for assistance and has a priority need, it is obliged to secure that accommodation is available for occupation by that person pursuant to sections 193(1) and (2) of the 1996 Act.

21. This duty continues until it ceases by virtue of section 193, which covers various circumstances including where the person becomes homeless intentionally from the accommodation made available for his occupation (section 193(6)(b)). A person becomes homeless intentionally if he deliberately does or omits to do anything in consequence of which he ceases to occupy accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy (section 191(1) of the 1996 Act).

22. Section 79 and paragraph 4 of Schedule 1 to the Housing Act 1985 provide that tenancies granted under section 193 of the 1996 Act are non-secure unless the local authority specifies otherwise.

23. The Protection from Eviction Act 1977 requires a landlord to give not less than four weeks' notice in writing in a prescribed form before possession can be obtained. Further, a landlord must obtain a court order for possession.

24. Under section 89 of the Housing Act 1980 the County Court has no discretion to suspend possession orders granted in respect of non-secure tenancies for more than six weeks and can only suspend for more than two weeks in cases of exceptional hardship.

25. For a general summary of domestic proceedings prior to November 2010 regarding the right of defendants to rely on Article 8 in the context of a defence to possession proceedings, see the Court's judgment in Kay and Others v. the United Kingdom, no. 37341/06, §§ 18-43, 21 September 2010.

26. Notably, in Kay and others v. London Borough of Lambeth and others; and Leeds City Council v. Price and others [2006] UKHL 10, Lord Hope of Craighead clarified the two “gateways” via which a defendant in possession proceedings could challenge his eviction:

“... Where domestic law provides for personal circumstances to be taken into account, as in a case where the statutory test is whether it would be reasonable to make a possession order, then a fair opportunity must be given for the arguments in favour of the occupier to be presented. But if the requirements of the law have been established and the right to recover possession is unqualified, the only situations in which it would be open to the court to refrain from proceeding to summary judgment and making the possession order are these: (a) if a seriously arguable point is raised that the law which enables the court to make the possession order is incompatible with article 8 [“gateway (a)”], the county court in the exercise of its jurisdiction under the Human Rights Act 1998 should deal with the argument in one or other of two ways: (i) by giving effect to the law, so far as it is possible for it do so under section 3, in a way that is compatible with article 8, or (ii) by adjourning the proceedings to enable the compatibility issue to be dealt with in the High Court; (b) 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 [“gateway (b)”], he should be permitted to do this provided again that the point is seriously arguable ...”

27. The subsequent case of Doherty and others v. Birmingham City Council [2008] UKHL 57 considered the Kay gateways. As regards the scope of gateway (b), Lord Hope clarified:

“52. ... [T]he speeches in Kay show that the route indicated by this gateway is limited to what is conveniently described as conventional judicial review ...

53. ... [I]t will be open to the defendant by way of a defence to argue under gateway (b) that the order should not be made unless the court is satisfied, upon reviewing the respondent's decision to seek a possession order on the grounds that it gave and bearing in mind that it was doing what the legislation authorised, that the decision to do this was in the Wednesbury sense not unreasonable ...

55. I think that in this situation it would be unduly formalistic to confine the review strictly to traditional Wednesbury grounds. The considerations that can be brought into account in this case are wider. An examination of the question whether the respondent's decision was reasonable, having regard to the aim it was pursuing and to the length of time that the appellant and his family have resided on the site, would be appropriate. But the requisite scrutiny would not involve the judge substituting his own judgment for that of the local authority. In my opinion the test of reasonableness should be, as I said in para 110 of Kay, whether the decision to recover possession was one which no reasonable person would consider justifiable.”

28. On 3 November 2010 the Supreme Court handed down its judgment in Manchester City Council v. Pinnock [2010] UKSC 45 (“Pinnock”), sitting as a panel of nine judges. The case concerned possession proceedings brought against a demoted tenant. Following a review of the case-law, the Supreme Court considered the following propositions to be well established in the jurisprudence of this Court:

“(a) Any person at risk of being dispossessed of his home at the suit of a local authority should in principle have the right to raise the question of the proportionality of the measure, and to have it determined by an independent tribunal in the light of article 8, even if his right of occupation under domestic law has come to an end ...

(b) A judicial procedure which is limited to addressing the proportionality of the measure through the medium of traditional judicial review (i e, one which does not permit the court to make its own assessment of the facts in an appropriate case) is inadequate as it is not appropriate for resolving sensitive factual issues ...

(c) Where the measure includes proceedings involving more than one stage, it is the proceedings as a whole which must be considered in order to see if article 8 has been complied with ...

(d) If the court concludes that it would be disproportionate to evict a person from his home notwithstanding the fact that he has no domestic right to remain there, it would be unlawful to evict him so long as the conclusion obtains – for example, for a specified period, or until a specified event occurs, or a particular condition is satisfied.”

29. The Supreme Court considered that in order for domestic law to be compatible with Article 8 of the Convention, where a court was asked by a local authority to make an order for possession of a person's home, the court had to have the power to assess the proportionality of making the order, and, in making that assessment, to resolve any relevant dispute of fact. In terms of the practical implications of this principle, the Supreme Court noted that if domestic law justified an outright order for possession, the effect of Article 8 could, albeit in exceptional cases, justify granting an extended period for possession, suspending the order for possession on the happening of an event, or even refusing an order altogether. Finally, the court observed that the need for a court to have the ability to assess the Article 8 proportionality of making a possession order in respect of a person's home might require certain statutory and procedural provisions to be revisited.

30. In the context of demoted tenancies, the Supreme Court held that it was possible to read the relevant legislation as permitting a demoted tenant to raise the issue of proportionality by way of defence.

31. On 23 February 2001 the Supreme Court handed down its judgment in the joined cases of Mayor and Burgesses of the London Borough of Hounslow v. Powell; Leeds City Council v. Hall; Birmingham City Council v. Frisby [2011] UKSC 8 (“Powell and others”). In its judgment, the court extended its approach in Pinnock to introductory tenancies and tenancies under the homelessness regime.

32. Lord Hope clarified that the legitimate aim engaged by the decision to seek possession was that of “protection of the rights and freedoms of others”, an aim that embraced the vindication of the local authority's ownership rights and the compliance by the local authority with its duties relating to the distribution and management of the housing stock for the benefit of other tenants. Both aims would be presumed, unless a tenant raised a challenge. Any proportionality argument based on personal circumstances would be judged against these two aims, together with any additional aims pleaded by a local authority in a particular case.

“33. The basic rules are not now in doubt. The court will only have to consider whether the making of a possession order is proportionate if the issue has been raised by the occupier and it has crossed the high threshold of being seriously arguable. The question will then be whether making an order for the occupier's eviction is a proportionate means of achieving a legitimate aim.”

34. The threshold for raising an arguable case on proportionality was a high one which would only succeed in a small proportion of cases. However, if the threshold was crossed, the court would have to consider whether making an order for possession was a proportionate means of achieving a legitimate aim. Lord Hope continued:

“The proportionality of making the order for possession at the suit of the local authority will be supported by the fact that making the order would (a) serve to vindicate the authority's ownership rights; and (b) enable the authority to comply with its public duties in relation to the allocation and management of its housing stock. Various examples were given of the scope of the duties that the second legitimate aim encompasses – the fair allocation of its housing, the redevelopment of the site, the refurbishing of sub-standard accommodation, the need to move people who are in accommodation that now exceeds their needs and the need to move vulnerable people into sheltered or warden-assisted housing ...

So, as was made clear in Pinnock ... there will be no need, in the overwhelming majority of cases, for the local authority to explain and justify its reasons for seeking a possession order. It will be enough that the authority is entitled to possession because the statutory pre-requisites have been satisfied and that it is to be assumed to be acting in accordance with its duties in the distribution and management of its housing stock. The court need be concerned only with the occupier's personal circumstances and any factual objections she may raise and, in the light only of what view it takes of them, with the question whether making the order for possession would be lawful and proportionate. If it decides to entertain the point because it is seriously arguable, it must give a reasoned decision as to whether or not a fair balance would be struck by making the order that is being sought by the local authority ...

In the ordinary case the relevant facts will be encapsulated entirely in the two legitimate aims [above]... It is against those aims, which should always be taken for granted, that the court must weigh up any factual objections that may be raised by the defendant and what she has to say about her personal circumstances. It is only if a defence has been put forward that is seriously arguable that it will be necessary for the judge to adjourn the case for further consideration of the issues of lawfulness or proportionality. If this test is not met, the order for possession should be granted. This is all that is needed to satisfy the procedural imperative that has been laid down by the Strasbourg court.”

The applicant complains under Article 6 § 1 and Article 8 of the Convention that a possession order was made without the proportionality of the eviction being considered by an independent court.

She also complains under Article 13 that she was unable to defend the possession proceedings on the ground that her personal circumstances made the granting of a possession order disproportionate and that as a result she did not have access to an effective remedy in respect of her Convention complaints.

Finally under Article 14, she alleges that she was discriminated against as a non-secure tenant and homeless person.

(a) did the local authority have a duty to house her and her children following her eviction?

(b) if the answer to (a) is in the affirmative, why was it necessary to evict the applicant from the property?

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You are here: BAILII >> Databases >> European Court of Human Rights >> Aleisha WACEY- GERMAINE v the United Kingdom - 71308/10 [2011] ECHR 806 (23 May 2011) URL: http://www.bailii.org/eu/cases/ECHR/2011/806.html Cite as: [2011] ECHR 806

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