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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Kensington and Chelsea v O'Sullivan & Anor [2003] EWCA Civ 371 (25 March 2003) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2003/371.html Cite as: [2003] EWCA Civ 371

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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
		25 March 2003

Lady Justice Arden :

1. 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.

2. Articles 8 and 14 of the Convention provide in material part as follows:-

Article 8

Right to respect for private and family life

1. Everyone has the right to respect for … his home.

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 … 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.

2. 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

4. 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.

3. 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.
4. 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

5. 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).

6. The judge then turned to article 8. 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.
7. 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).

8. 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).
9. However, in case that view was wrong, the judge proceeded to consider the position under article 8(2). In doing so the judge used the term "micro", which has been coined in R v Bracknell Forest BC ex parte McLellan (2001) 33 HLR 36, to denote the testing of article 8(2) against the facts of the individual case (as opposed to the "macro" level for which purpose the relevant question is whether the legislative scheme complies with article 8(2)). The judge asked himself the question whether there was anything on the special facts of the wife's case which made it unnecessary or disproportionate to grant the respondent a possession order for the purposes for which they sought it, namely the fair and orderly management of their housing stock. It was not suggested that there was any incompatibility between the housing legislation and the Human Rights Act 1998.
10. The judge held that his only power was to grant or refuse an order for possession. The judge rejected the appellant's submission that he should make an order for possession on the respondent's undertaking not to enforce it until the appellant and her (adult) grandson, who was living with her, came to the top of the homeless persons' queue. (This could take anything up to one year.) The judge held that there were detailed and comprehensive codes regulating landlord and tenant law and regulating family law. These conferred power to make occupation orders and transfer of property orders. To make this or other orders suggested by the appellant would cut across those provisions to a disproportionate extent. He held that he had to perform a balancing act. He accepted that the appellant's claim had merit and had to be weighed in the balance. However, the interests of the respondent and other persons on their housing list, in his judgment, far outweighed the appellant's right to protection of her home. The interests to be set against the appellant's interests included the desirability of a settled and predictable scheme of landlord and tenant housing law, for which the court would be substituting an admittedly judicial, but wholly unpredictable, discretion.
11. The judge also considered that if he refused to make a possession order there would be doubt about the status of the appellant as a tenant. The problem would be exacerbated where the rights of private landlords had to be considered.
12. At the "micro" level, the judge accepted that the appellant was in an unfortunate situation but it was no different from any case in which a wife fails to succeed in obtaining the assistance of the family law courts in time and the husband has dissipated the relevant assets. In this case, the dissipation consisted of the termination of a tenancy which could not be revived. It could be revived de facto by refusing an order for possession, but the judge was persuaded that the respondent could not allow the appellant to jump the housing queue without contravening its Housing Allocation Scheme required under section 167 of the Housing Act 1996. Similarly the judge had no reason to believe that to allow her to jump the queue of homeless persons under Part VII would not displace equally deserving families. The judge suggested that the word "others" in article 8(2) should be given an extended meaning so as to include persons in the queue of homeless persons.
13. Before the judge it was common ground that, before the court could make an order for possession, the court had to find that the order for possession would be justified by relevant and sufficient reasons, correspond to a pressing social need and be proportionate to the end pursued "in protecting the rights and freedoms of others". To be proportionate the objective had to be sufficiently important to justify limiting a fundamental right, the measure had to be rationally connected to that objective and not based on arbitrary, unfair or irrational considerations and the means used had to be no more than was necessary to accomplish legitimate objective. For the reasons which he had already given in his judgment, the judge found for the respondent on all those issues, and held the case did not fall within the exceptional class of case in which a valid objection under article 8(2) could be made in possession proceedings.

Submissions

Article 14 taken together with Article 8(1)

14. Mr Short, for the appellant, relies on the decision of the European Court of Human Rights in Wessels-Bergevoet v The Netherlands, 4 September 2002, for the following propositions:-

(i) strong reasons are required to justify different treatment on the grounds of sex and marital status;

(ii) the fact that social attitudes were different in 1970 is of little weight;

(iii) the court has to have regard to the effect of a difference in treatment where the inequality in treatment embodied in a former practice materialises at a later date, and

(iv) the court has to take account of the fact that when the discriminatory practice was discontinued no measures were taken to remove the discriminatory effect of the former practice.

15. Mr Short submits that it was accepted by the respondent's witnesses that, if the respondent had known that the appellant was in occupation and was in dispute with her husband as to what should be done with the tenancy, it would not have agreed to a transfer of the tenancy to the husband's new home. Instead, it would have allowed the matter to be determined by the courts. Moreover, if the appellant had been a joint tenant of the premises, it would not have sought possession. It would either have allowed the civil courts to resolve the matter or applied its policy on termination of joint tenancies (see above).
16. Mr Short submits that the respondent acted in a discriminatory manner when it granted a sole tenancy of the property to the appellant's husband in 1970. It is immaterial that the appellant did not ask to be made a joint tenant in 1970 or that social conditions have changed. A discriminatory act remains discriminatory whether or not the victim of the discrimination claims equal treatment at the time. Moreover, the fact that social conditions may have changed since 1970 does not prevent the policy from being discriminatory. The respondent seeks to perpetuate the impact of a policy that was discriminatory in fact in 1970.
17. Mr Short submits that the judge found that there was a common practice for tenancies to be granted to the male spouse of a married couple rather than the couple jointly. The existence of this practice was on his submission the most likely reason why a joint tenancy was not granted to the appellant and her husband. In paragraph 10 of the judge's judgment, the judge found that the appellant could have asked to be a joint tenant. Mr Short submits that the policy was still discriminatory. In any event, the judge would not have been entitled to find that the appellant had made no request in 1970. Her evidence, which was not challenged, was that it was she who had pressed the GLC to grant the tenancy in 1969/70.
18. Further, Mr Short challenged the judge's conclusion that H would have refused to allow her to become a joint tenant. This was all hypothetical and did not assist here because the respondent did not know about this position and in any event this inference was not open to the judge with respect to 1970. The position was that the parties had become estranged by 1991.
19. Mr Short submits that, if the appellant had been a man, she would have been made a tenant or joint tenant. If the grant of the tenancy had occurred after the discriminatory practice had come to an end, she would have been the tenant or joint tenant. The comparators were, first, a man who had been housed in like circumstances to the appellant in 1970, who would have been granted a tenancy or joint tenancy and would not be facing eviction in the present circumstances, and second, a man or woman who had been rehoused in like circumstances to the appellant after the discriminatory policy had been discontinued and who would also have been granted a tenancy or joint tenancy and would likewise not be facing eviction in the present circumstances. The obligation to secure the enjoyment of rights without discrimination can place a positive obligation on states to take action. In this case, the positive obligation would include refraining from treating the appellant less favourably because of the continuing impact of a discriminatory practice.
20. Accordingly, the respondent discriminated against the appellant on the grounds of sex in seeking possession of the property. There was no reason why the respondent's discrimination should not be held to violate article 14 although the tenancy was granted many years ago. The discriminatory act had a continuing impact.
21. It would have been unrealistic to expect the appellant to have made a request to be made joint tenant. In any event, H's permission would be required. She heard about the notice to quit too late to take any effective action.
22. In finding that the respondent would be required to act in contravention of its Housing Allocation Scheme, the judge failed to take account of the circumstances in which the appellant was not made a tenant or joint tenant and the fact that the possession would not have been required had she been. In any event, the Housing Allocation Scheme was discriminatory without justification as regards the appellant.
23. Mr Short submits that, in so far as the respondent relies on the policy set out above, it is not a case of creating two tenancies out of one but of relying on the policy itself. The new tenancy does not grow out of her old tenancy, but out of her priority needs. The impact of the policy is simply to allow her to remain in the property until the offer of the new property is made. Therefore, the offer of a tenancy is outwith their policies. It does not involve cutting across the Housing Allocation Scheme which is governed by statutory provisions and internal policies.
24. In the alternative, Mr Short submits that the respondent discriminated against the appellant on the grounds of status. She was being treated less favourably because she did not have the status of a joint tenant. The difference in status resulted from historical discrimination and accordingly could not be relied on as objective or reasonable justification for the difference in treatment: see the Belgium Linguistics case (No.2) [1968] 1 EHRR 252, 283 and 284.
25. Alternatively, the respondent was discriminating against her because it had been deceived by H into granting a new tenancy. Article 14 does not apply to discrimination by way of a closed list of causes. The fact that the local authority was deceived is not a good reason, especially when at the time of interference with the appellant's right (that is, when the order for possession was made), the true position was known.
26. The appellant can rely on the discrimination which occurred before the Human Rights Act 1998 came into force: see section 7(1)(b) of that Act. R v Lambert [2002] 2 AC is distinguishable.
27. Mr Mark Lowe QC, for the respondent, makes the following submissions on article 14. He submits that the judge was correct to find that there was no factual basis on the evidence for finding that article 14 was engaged. Mr Lowe refers to the evidence before the judge from Miss Isobel Rickard, a housing manager of the agency employed to manage the respondent's housing stock, which was to the effect that there was a common practice at the time to give the tenancy to the male spouse. Mr Lowe points out that there is no suggestion that the respondent would have refused to offer a tenancy to a wife or even to allow a wife to become a sole tenant if she applied. Indeed, the appellant's counsel had in the court below himself argued that the grant of a tenancy to the house was "accidental".
28. Mr Lowe submits that there is no discrimination in granting a tenancy to one spouse only. He further submits that the appellant could have protected herself by applying to become a joint tenant and accordingly there was no discrimination. The landlord is not required to offer a joint tenancy. Moreover, it is lawful to receive a notice to quit from one only of the joint tenants. The appellant received a benefit from not being a joint tenant in that she was free from covenants in the tenancy, including the obligation to pay rent. She had never contributed to the rent.
29. On the facts of this case, had the appellant been made a joint tenant in 1970, she would have had to sever it by serving a notice to quit in 1981/2 in order to obtain the offer of a new tenancy in Elephant and Castle. If thereafter the appellant had sought a further joint tenancy the respondent could not have granted it without the permission of the existing tenant, her husband, who was unwilling for her to be granted a joint tenancy.
30. In any event, the four tests set out by Brooke LJ in Wandsworth LBC v Michalak [2002] 4 All ER 1136 were not satisfied. The first question is whether or not the facts fell within a substantive Convention right. The mere grant of the tenancy did not fall within any article 8 right. In addition, that event occurred before the Human Rights Act came into effect and, therefore, is not to be reviewed on the basis that the Act was then in force: see R v Lambert [2002] 2 AC 545. The second test laid down in Michalak was that there should be different treatment as respects that right between the complainant on the one hand and the chosen comparators. The judge found correctly that there was no such discriminatory treatment. Moreover, if the grant of the tenancy was discriminatory the appellant had had the same opportunities as if she had been a joint tenant with her husband to take proceedings under the Family Law Act 1996 and the Matrimonial Proceedings Act 1973 on hearing that her husband had been given notice to quit. However, he accepts that she only received short notice that the notice to quit had been served. In addition, if article 14 applied, the appropriate comparator was a joint tenant remaining in possession where one joint tenant had validly determined the tenancy. If one joint tenant had "transferred" the tenancy to another property, the remaining joint tenant would not have received a discretionary offer such as the respondent indicated that it would make to the appellant in this case. Accordingly, there was no discrimination. In the circumstances, the third and fourth tests in the Michalak case do not apply.
31. The respondent was not bound to take any action until the Human Rights Act 1998 came into force. The highest it could be put was that at that stage it should have provided that women, who were not joint tenants because they were not offered joint tenancies at the time when the tenancies were created, should be treated for the purposes of the Housing Allocation Scheme as if they had been joint tenants immediately prior to determination of the tenancy.
32. The respondent would not contemplate two tenancies being created out of one. The evidence showed that, if a marriage broke down, the respondent would wait for the court to decide which of them should have the tenancy.
33. The position here was that the sole tenant had misrepresented the position. The respondent had accepted notice to quit in the same way that they would have accepted notice to quit from a female joint tenant. The policy set out above only applies if there is no transfer. The respondent has no power to allocate properties otherwise than in accordance with its stated policies. (R (O/A Duddy) v Macclesfield BC, Harrison J, 17 October 1980, was cited for this proposition in the court below, but no doubt the respondent accepts that it cannot be unlawful for it to depart from its Housing Allocation Scheme if that is what the Convention requires). Accordingly, on the respondent's case, it was not open to the respondent then or now to make an offer of a one bedroomed unit to the appellant and to permit her to remain in the property until such a unit became available.

Article 8(2)

34. Mr Short submits that a possession order should not be made if the eviction of the appellant would be incompatible with article 8 when read with article 14: see Sheffield City Council v Smart [2002] HLR 639 at paragraph 45. The "micro" exercise was appropriate because of that unusual element.

37. The judge erred in taking the view that the interest to be weighed against the appellants included the public interest in a settled and predictable scheme of landlord and tenant housing law. As Peter Gibson LJ pointed out in the Quazi v Harrow LBC, the court must now give effect to the rights protected by the Human Rights Act 1998. As regards the ongoing status of the appellant, the law is flexible enough to provide for new situations, such as with the concept of tolerated trespassers following the breach of a suspended possession order: see Burrows v Brent LBC [1996] 1 WLR 1448.

35. Under the Housing Allocation Scheme policy set out above, if the respondent had a duty to house a former joint tenant remaining in the property because, like the appellant (who is now a senior citizen), he or she was in priority need, they would not be expected to move to temporary accommodation until an appropriate property became available.

39. There is a valid objective in freeing up a five bedroomed house, but the appellant's right to a home could have been dealt with in a less invasive way, that is in a way which involved treating her no differently from a former joint tenant. Accordingly, it was not necessary or proportionate to evict the appellant. The judge failed to consider the other alternatives including the undertaking suggested.

36. "Exceptional circumstances" (per Laws LJ in the Smart case), requiring the court to consider article 8(2) in ordinary possession proceedings arise if, for example, on a factual assumption made at trial proved to be incorrect. It would be in accordance with the overriding objective that the court in the possession proceedings should determine the legality of the respondent's action. Exceptional circumstances include the costs of judicial review proceedings.
37. In contrast, Mr Lowe submits that the decision of the judge was before the judgment of this court in Michalak v London Borough of Wandsworth [2002] 4 All ER 1136, which established that, where Parliament has provided for possession proceedings to take place in accordance with specific provisions under the relevant scheme of the Housing Act, Parliament has struck the appropriate balance of interest under article 8(2). The due respect for home required by article 8 is thus catered for by the availability of judicial review except in the wholly exceptional case where the court has a residual discretion to consider the position under article 8. Were it otherwise, an individual determination by the court of whether possession proceedings were an unjustified interference with each applicant's article 8(2) right would undermine the various Housing Act schemes that were established to provide accommodation on a non-secure basis (see also the Smart case at paragraphs 30 to 42 per Laws LJ and the Michalak case at paragraph 78 per Mance LJ).
38. In this case Parliament had provided for possession proceedings to take place in accordance with section 3 of the Protection from Eviction Act 1977 and section 89 of the Housing Act 1980. The right of a spouse to terminate either a sole or joint tenancy by the giving of notice has been preserved. The policy of the respondent with respect to this matter is not impugned on public law grounds. Parliament has provided for the protection of the rights of the appellant to a home in the schemes under Parts VI and VII of the Housing Act 1986: see the Michalak case per Brooke LJ at paragraphs 41, 46 and 48 and per Mance LJ at paragraphs 63 and 64.
39. Moreover, the Housing Acts confer no security of tenure on licensees (see the Michalak case at paragraphs 41 and 63 per Brooke and Mance LJJ respectively). The position is to be contrasted with the position of licensees who have succession rights on the death of a tenant (see the Smart case). The scheme would be undermined if property could by tied up for a significant period while the court considered the issue under article 8(2). The judge was, therefore, correct in finding that this claim would tend to undermine the scheme of the housing legislation as it was not restricted to the short term but would oblige the respondent to treat her as if she was the secure tenant of this five bedroom property: see the Michalak case, at paragraph 65, per Mance LJ.
40. The judge was wrong to consider the position under article 8(2) at the "micro" level. Parliament has adopted and confirmed the common law by accepting the limitation on the power to defer the operation of the possession order (section 89 of the Housing Act 1980). In any event, given the manifest disparity between the needs of the parties for a five bedroom house, it is necessary and proportionate for the protection of rights and freedom of others who require this size of family accommodation as secure tenants for the possession order to be made.
41. Moreover, if the possession order had been granted on terms that the respondent gave an undertaking that the appellant would only be required to move out once a new permanent home could be offered, this would come impermissibly close to attempting to use article 8 to secure a home. Article 8 does not secure such a right: (see Chapman v UK (2001) 33 EHRR 18). For his part, Mr Short distinguished the Chapman case on the grounds that in the present case the property was already the appellant's home by the time the respondent gave notice to quit.

Conclusions

42. There is no dispute but that the appellant is entitled in the future to the grant by the respondent of a sole tenancy of a one bedroom flat. The dispute is whether the appellant, unlike a remaining joint tenant under the policy in the Housing Allocation Scheme which I have set out above, must go into temporary accommodation before she is allocated such a flat, or (if she qualifies) any larger property. Accordingly, the practical question which this court has to decide is relatively narrow.
43. In the Michalak case, Brooke LJ gave guidance as to the way in which the court should approach an issue under article 14, and it is helpful in this case to adopt the framework he suggested. Brooke LJ said:

"It appears to me that it will usually be convenient for a court, when invited to consider an art 14 issue, to approach its task in a structured way. For this purpose I adopt the structure suggested by Stephen Grosz, Jack Beatson QC and the late Peter Duffy QC in their book Human Rights: The 1998 Act and the European Convention (2000). If a court follows this model it should ask itself the four questions I set out below. If the answer to any of the four questions is No, then the claim is likely to fail, and it is in general unnecessary to proceed to the next question. These questions are: (i) Do the facts fall within the ambit of one or more of the substantive convention provisions (for the relevant convention rights, see s 1(1) of the 1998 Act)? (ii) If so, was there different treatment as respects that right between the complainant on the one hand and other persons put forward for comparison ('the chosen comparators') on the other? (iii) Were the chosen comparators in an analogous situation to the complainant's situation? (iv) If so, did the difference in treatment have an objective and reasonable justification: in other words, did it pursue a legitimate aim and did the differential treatment bear a reasonable relationship of proportionality to the aim sought to be achieved? The third test addresses the question whether the chosen comparators were in a sufficiently analogous situation to the complainant's situation for the different treatment to be relevant to the question whether the complainant's enjoyment of his convention right has been free from art 14 discrimination." (judgment, paragraph 20)

44. In this case it is common ground that article 8 is engaged at the time that the respondent obtained an order for possession of the property because by then it was the appellant's home. However, it was not the appellant's home when the tenancy was offered in 1970 and article 8 does not in terms confer the right to be provided with a home (Chapman v UK, paragraph 99). Although it is not necessary under article 14 to find that a Convention right has been violated (see Mendoza v Ghaidan [2002] All ER(D) 32), the complaint must arise within the ambit of another article in the Convention and no authority was cited to us for the proposition that article 14 protects access to a Convention right It follows that a person who was offered a joint tenancy in 1970 cannot be an appropriate comparator in this case.
45. Article 8 was engaged only at a later date after it became the appellant's home. I do not think it matters which date is chosen for this purpose but in view of the appellant's absences from the property in the period 1979 to 1982, it is probably easiest to take a date after that period, say, 1983. The respondent (by which expression I also include its predecessor in title, the GLC) acted in violation of the appellant's article 8 right by seeking possession. The Michalak case, however, decides that article 8(2) is satisfied by reference to the legislative scheme, holistically viewed. To distance her case from that case the appellant has to show a violation of article 14 in conjunction with article 8, and that by reason of such violation she is now subject to a possession order to which she would not have been subject if that violation had not occurred.

50. The European Court of Human Rights has frequently stated that:

"the advancement of the equality of the sexes is today a major goal in the member states of the Council of Europe and very weighty reasons would have to be put forward before … a difference of treatment could be regarded as compatible with the Convention." (see, for example, Abdulaziz, Cabales & Balkandali v the United Kingdom, (1985) 7 EHRR 471 at paragraph 78).

46. Had article 8 been engaged in 1970, I can see how the case could be put. The respondent knew at the time of the application made by the appellant's husband for a tenancy that H was married to the appellant. The evidence before the judge which would show why the tenancy was granted solely to H rather than to H and the applicant jointly is exiguous but we do know that in 1970 it was common practice to grant tenancies to husbands alone (judgment, paragraph 10). There is no finding as to whether the respondent would have granted a tenancy to the wife alone. There is no finding that the respondent would have refused to grant a joint tenancy if asked or that the appellant in this case asked to be a tenant. (I do not accept Mr Short's submission that the judge should have found that the appellant did make such a request in 1970). There is likewise no evidence that the respondent offered to make the appellant a joint tenant. The furthest the evidence goes is to show that the respondent assumed that the tenancy should be offered to H alone.
47. It must be borne in mind that the grant of a tenancy would carry significant advantages as well as liabilities. Obviously, the tenant would be liable for the rent and on the covenants contained in the tenancy. On the other hand, the tenant would have the right to receive notices concerning the tenancy, to give notice to quit and, under the respondent's policy set out above, to receive a new offer of housing without moving into temporary accommodation first. In addition, her dependants could succeed to her tenancy in the event of her death. It is well known that, where the home is vested solely in the husband, the wife is at risk of losing her home if her husband disposes of the home. It must, therefore, have been obvious to the respondent that a person in the position of the appellant would need protection.
48. The first argument which the judge accepted was that it was necessary for the respondent to have had a request before it could be said that it discriminated. However, as I see it, the respondent could discriminate by making an assumption that where the husband applied he should be granted a sole tenancy. It would not appear that the respondent would have made the same assumption if the wife had applied for a sole tenancy since "it was common practice to grant tenancies to husbands alone".
49. The facts of this case may, therefore, be compared with those of Schuler-Zgraggen v Switzerland, (1993) 16 EHRR 405, a decision of the European Court of Human Rights. In this case, the Federal Insurance Court in Germany refused to consider the applicant's pension claim although she was sufficiently incapacitated to be awarded a half pension. The Federal Court considered that, since after her retirement on ill health grounds she had had a child, it had to be assumed in assessing her earnings capacity that she would have given up work altogether on the birth of her son in any event. The European Court of Human Rights held that in making this assumption without testing the validity of the assumption by weighing arguments to the contrary the Federal Court had discriminated against the applicant on the grounds of sex. It is true in that case that the applicant had made a request for assessment of her pension. In this case, the appellant had made no request for a tenancy. However, the important point is that the respondent made an assumption that it need not offer the tenancy to both husband and wife and in my judgment that is a sufficient discrimination. The Schuler-Zgraggen case also shows that there can be discrimination not only where some legislative scheme requires an unjustified distinction to be made between the sexes but also where public authorities make such distinctions without legislative compulsion.
50. What Mr Short must do is establish a violation of article 8 taken with article 14 at some date after the property became the appellant's home. I accept his argument that it does not matter in this case if article 8 was engaged before 2 October 2000 when the Human Rights Act 2000 came into force because the respondent is a public authority and took possession proceedings after that date. So I turn to Mr Short's alternative submissions on article 14. His primary alternative submission was that the respondent had a positive obligation to put the appellant into the position of a joint tenant when the property became her home. I have put that date above at 1983.
51. At this point I must return to the judge's judgment. The judge's second reason for concluding that article 14 was not engaged was that the husband would have objected to the grant of a tenancy to the wife in any event. At the time the tenancy was granted, the husband and wife were living harmoniously and eventually they brought up twelve children together. In about 1980, however, their marriage broke down and, while they were not divorced, after 1982 they lived separate lives. There was evidence (disputed by the appellant) that in 1991 the appellant's husband told the respondent that he did not wish the appellant to be made a joint tenant. But in my judgment, it cannot be inferred that prior to 1991 the husband would have objected to the appellant being a joint tenant. That leaves a period from 1983 to 1991 when even on the judge's findings the appellant could have been made a joint tenant without an objection from H. This provides a window of opportunity in which, on Mr Short's argument, the respondent could have acted.
52. There was evidence that it would not have been in the appellant's interests to become a joint tenant. The rent was paid almost entirely though housing benefit. The application for housing benefit was made by H alone so the appellant's earnings did not have to be declared. Moreover, the appellant never contributed to the payment of any arrears for which H was responsible. However, the judge made no finding that the appellant would not have agreed to become a joint tenant. It would have been useful to have a finding on that point if there was evidence on it.
53. Returning to the window of opportunity I have identified, I do not consider that its absence would in any event have been fatal to the appellant's case. Her contention is that she should not, on the termination of the tenancy, have been put in any different position from that of a spouse who had been made a joint tenant from the outset. The material difference was in treatment under the Housing Allocation Scheme policy set out above. The relevant consequence on her case is that she should be treated as if she were the remaining tenant for the purposes of that policy. That would not require the consent of H, only equal treatment by the respondent. If she received this equal treatment she would not have to move into temporary accommodation. I can proceed either on this basis or on the window of opportunity basis to the next stage.
54. I accept that circumstances may arise when a public authority has a positive obligation under article 8 (see generally Airey v Ireland (1979) 2 EHRR 305, paragraph 32). The notion of "respect" in article 8 may from time to time require a public authority to take some positive step to protect a home or family life. However, to find such an obligation, a fair balance has to be struck between the interests of the individual and those of the community (see, for example, Keegan v Ireland (1994) 18 EHRR 342, paragaph 49).
55. So the question, whether in "the window of opportunity" in 1983 to 1991 the respondent had a positive obligation to offer to make the appellant a joint tenant, entails an inquiry into the question whether the imposition of such an obligation on the respondent would fairly balance the parties' respective interests. I interpose that Mr Short does not in fact submit that there was a positive obligation before the discriminatory practice ceased, and we do not know when that was or indeed if it has ceased or ceased before 2 October 2000. The Housing Allocation Scheme does not deal with this point: it merely says that married couples are "eligible" for a joint tenancy. I am prepared to assume that the discriminatory practice ceased between 1983 and 1991 so that "a window of opportunity" remained. Would it have been reasonable to expect the respondent then to have enquired which of its sole tenants was in fact living with a partner, which of those partners wished to be a joint tenant and whether the tenant would agree to this? It must be accepted in answering this question (a) that as a matter of law the consent of the tenant would be necessary; (b) that the positive obligation could not be limited to female spouses: it would have to extend to male spouses and also analogous relationships, whether heterosexual or not; and (c) that it would not be enough simply to write a few letters: other enquiries would have to be made. The appellant, on the other hand, could have initiated the process herself and she would receive a measure of protection on the alternative basis of being treated as the remaining joint tenant for the purpose of the Housing Allocation Scheme policy. For my own part, I consider that the positive obligation for which Mr Short argues would impose an excessive burden on the respondent in practice which would result in the balance being swung unfairly in the appellant's direction. Accordingly, I conclude that the respondent had no such obligation, whether for article 8 or article 14 purposes.
56. That leaves the alternative formulation `of the positive obligation suggested above. At first glance there would have been no difficulty in treating the appellant as on the same footing as a remaining joint tenant under their Housing Allocation Scheme. Mr Lowe did not suggest that this would have created any practical problem for the respondent if it had known that the appellant was resident at the property at the time of the notice to quit. But he contended that the respondent did not have the necessary knowledge. The judge accepted that the respondent did not then know about the appellant's occupation, and that their belief was not unreasonable.
57. Mr Short has not argued that the respondent ought to have known that the appellant was living at the property. This might well have been difficult on the facts. The appellant had certainly moved out from time to time. She told the respondent that she was returning permanently in 1991 but she was away in Ireland for several months immediately before the notice to quit was served. Either she or H had started divorce proceedings before 1990 and the respondent had a copy of the divorce petition on its file. The appellant made no contribution to the rent and had not joined in the application for housing benefit. H, who in his dealings with the respondent apparently referred to the appellant as his "ex-wife", had told the respondent that the appellant was not residing at the premises.
58. In my judgment, the respondent had no positive obligation, whether for article 8 or article 14 purposes, to treat the appellant as a remaining joint tenant under its Housing Allocation Scheme policy unless it at least knew that the appellant was in occupation before it transferred the tenancy. I do not need to consider the question whether the respondent should have made any enquiries as to the appellant's occupation or was put on notice in any event. I express no view on that question as it has not been argued and could give rise to substantial practical difficulties. In the circumstances of this case it is sufficient to conclude, as I do, that the respondent had no obligation to ensure that the appellant was treated in the same way as a remaining joint tenant under its Housing Allocation Scheme policy before it was made aware that the property was also her home. It only acquired the necessary knowledge after the tenancy for the property had been transferred to the husband's new home.
59. Once the content of the respondent's obligation is established, the appropriate comparator can be identified. I would accept the submission of Mr Lowe QC that the appropriate comparator is a joint tenant remaining in the property whose spouse has terminated the tenancy and secured a "transfer" of it to another property for himself or herself. The appellant was in no worse position than such a spouse because the respondent's evidence was that it would not "create two tenancies out of one". It would only transfer the tenancy to one new property. The other spouse would need to be accommodated by some other means. They would not be treated as a remaining joint tenant under the Housing Allocation Scheme. Accordingly, the appellant would also not be in a different position from the spouse who is too late to obtain relief from the family courts. (I need not deal with the position of partners).
60. I would add that the judge did not make a finding that the Housing Allocation Scheme policy operated in the way that I have just described, but Mr Short has not challenged that that is its true interpretation. Nor has he challenged the proposition that it would have been unlawful for the respondent to act in contravention of its Housing Allocation Scheme. Mr Short's point is that the new tenancy would not arise out of the Housing Allocation Scheme but out of her priority needs (viz. Part VII as opposed to Part VI of the Housing Act 1996). But that argument does not advance matters because he still has to show that a joint tenant residing in the property, of whom the respondent was unaware until after the tenancy has been terminated and "transferred", was entitled to be treated as the "remaining tenant" for the purpose of policy. In my judgment this is not on the evidence shown.
61. Mr Short's alternative argument was that there was discrimination because she was treated in a different way as a result of H's fraudulent misrepresentation to the respondent than a woman in respect of whom the tenant spouse had been truthful. This, however, is only another way of putting his argument that the appropriate comparator is to be taken at a point in time before the respondent discovered that the property was the appellant's home. For the reasons given above, I do not consider that such a comparator would be in an analogous position to that in which the appellant found herself. Likewise, for the reasons given above, there was no discrimination on grounds of status. She was treated no differently from a joint tenant in an analogous position.
62. In my judgment, it is no answer to the article 14 argument that the appellant could have made a request to become a joint tenant. I accept Mr Short's submission on this. The respondent had its own independent positive obligation under articles 8 and 14. Nor is it any answer that she would have had to sever any joint tenancy when she was offered a tenancy at Elephant and Castle because there is no finding that she took up that tenancy. It is also irrelevant that, if the appellant is a mere licensee and possession could not be obtained against her, the legal status of her in possession of the property would not be clear. The court would no doubt decide what her status was.
63. I now turn to article 8(2) on the basis that no violation of article 14 is established. In my judgment, the position in any normal situation is concluded by the decisions of this court in Sheffield City Council v Smart and Wandsworth LBC v Michalak. In the first case, the tenant had a non-secure tenancy but the court determined in accordance with the statutory scheme that it was appropriate to make a possession order. Laws LJ, with whom Kay and Thorpe LJJ agreed, held that "article 8(2) exonerates the authority of any liability under article 8(1) arising from the tenant's conviction if it has acted fairly and reasonably in conformity with the scheme." (paragraph 35). Laws LJ held that it would undermine the statutory scheme if the court were to withhold a possession order in circumstances additional to those grounds on which under the statute possession could be refused:

"Mr Luba was at pains to insist that his case was put at what he called the 'micro' level: that is, he claimed only that his clients' individual cases be examined against the article 8 standards. He disclaimed any argument on the 'macro' level: that is, a challenge in principle directed to the compatibility of the homelessness legislation with [the Human Rights Act 1998]. (The 'micro/macro' vocabulary was used in McLellan). But this very disavowal, in my judgment, betrays the weakness in Mr Luba's argument's roots. If this court were to hold that a tenant in the circumstances of either of these appellants is by force of article 8(2) entitled to have the County Court judge (or the judicial review court, it matters not) decide on the particular facts whether her eviction is disproportionate to the Council's aim (in essence) of managing its housing stock properly, we would in effect thereby convert the non-secure tenancies enjoyed by homeless persons into a form of secure tenancy. We should be imposing a condition, not unlike the requirement of reasonableness presently applicable in relation to secure tenancies under the 1985 Act, which takes the judgment where the possession of the premises should be obtained from the landlord council and gives it to the court. But such a state of affairs would not be consistent with the scheme of Part VII of the Housing Act 1996 for the assistance of homeless persons …" (judgment, paragraph 37).

69. Laws LJ went on to hold as follows:

"I can see that if a tenant sought a judicial review upon being served with a notice to quit, the Administrative Court might now look at the case more closely than upon the conventional Wednesbury approach, not least given the recent decision of their Lordships' House in Daly [2001] 2 WLR 1389, and especially the observations of Lord Cooke of Thorndon. I can see also that at the stage of the trial of the possession proceedings, there might be the rare case where something wholly exceptional has happened since service of the notice to quit, which fundamentally alters the rights and wrongs of the proposed eviction; and the county court judge might be obliged to address it in deciding whether or not to make an order for possession. What I am clear the court cannot do is to take a position which disrupts the day to day operation of the scheme provided by Parliament in Part VII of the Housing Act 1996; and in my judgment not at least given the particular matters relied on by Mr Underwood, which I have set out at paragraph 23, that entails the conclusion that the balance of interests arising under article 8(2) has in all its essentials been struck by the legislature. …

The other qualification is as to the venue in which, when the possession claim comes for trial, any article 8(2) points might be taken. On my view of the substance of the case, such occasions will (or should) be very rare. But when they arise, Mr Underwood submitted that the county court judge should not make any enquiry himself as to the necessity or proportionality of the making of an order for possession, but should adjourn the possession proceedings for application to be made by the tenant for relief by way of judicial review in the Administrative Court. He submitted that no point under article 8(2) could afford a defence to a properly constituted possession claim. …

In my judgment, this argument simply ignores the effect of the HRA. The effect of sections 6 and 8 is that a housing authority cannot lawfully obtain possession of premises, and the court should not order it, if that would be incompatible with a Convention right. I should make it clear that in my view these provisions qualify the causes of action which the common law recognises; they are not sealed in a separate compartment, marked 'Judicial Review' or anything else. In the extremely limited circumstances in which an article 8(2) point may arise at the stage of trial of the possession proceedings the trial judge must deal with it. But no such point arises in these cases."

64. In the Michalak case, the principal question was whether or not the licensee was entitled to succeed to the tenancy of the tenant after his death. The court held that the licensee was outside the list of persons who by statute could succeed to the tenancy in question and that that provision did not violate his rights under articles 8 and 14 of the Convention. The court went on to say there was moreover no need for any individual scrutiny of the possession order since its objective justification lay in the statutory arrangements devised by Parliament for identifying who and who could not succeed to successor tenancies following the death of the secured tenant. The reasoning on this point was given in more detail by Mance LJ who summarised the argument for the licensee in these terms:

"[58]The county court's jurisdiction to make an order for possession is found in s 21(1) of the County Courts Act 1984: 'A county court shall have power to hear and determine any action for the recovery of land …' The authorities regarding this power (and its predecessor sections) established that it was the court's duty to order possession, where a landlord's legal right to possession had been established. The court could, even in the absence of any express power, postpone the operation of an order for possession (see Sheffield Corp v Luxford, Sheffield Corp v Morrell [1929] 2 KB 180, [1929] All ER Rep 581, Jones v Savery [1951] 1 All ER 820 and McPhail v persons, names unknown, Bristol Corp v Ross [1973] 3 All ER 393, [1973] Ch 447). However, s 89 of the Housing Act 1980 now provides in a case such as the present:

'… the giving up of possession shall not be postponed (whether by the order or any variation, suspension or stay of execution) to a date later than fourteen days after the making of the order, unless it appears to the court that exceptional hardship would be caused by requiring possession to be given up by that date; and shall not in any event be postponed to a date later than six weeks after the making of the order.'

[59] Mr Luba on behalf of Mr Michalak submits that this position has now been radically affected by the 1998 Act and the introduction into domestic law of the convention. The starting point to the submission is that the flat of which Mr Lul was tenant was (and is) Mr Michalak's home, so that art 8(1) of the convention is potentially engaged, irrespective of Mr Michalak's status or entitlement in law to remain there. That is, on authority, correct: see this court's decisions in Harrow London BC v Qazi [2001] EWCA Civ 1834, [2002] HLR 276 and Sheffield City Council v Smart, Central Sunderland Housing Co Ltd v Wilson [2002] EWCA Civ 4, [2002] LGR 467. 'Home' in Laws LJ's words in the latter case, is an autonomous concept and does not depend on any legal status as owner.

[60] The next step in Mr Luba's argument is that the county court, on the claim for possession, was a 'public authority' under s 6(3) of the 1998 Act, and subject to s 6(1), which provides: 'It is unlawful for a public authority to act in a way which is incompatible with a Convention right.'

[61] Accordingly, Mr Luba submits, it was unlawful for the county court to act in a way which was incompatible with the respect due to Mr Michalak's home under art 8. In particular, it was unlawful to interfere with Mr Michalak's right to respect for his home except under conditions specified in art 8(2), and the judge should not have ordered possession unless satisfied that such conditions were met. As to the first condition, that the interference should be 'in accordance with the law', Mr Luba accepted that this was satisfied, by virtue of the fact that Mr Michalak was and remains a trespasser residing in the council's flat. It follows, by the same token, that the possession order was made 'for the protection of the rights' of the council in its flat.

[62] But the key issue, in Mr Luba's submission, was, or ought to have been, whether it was 'necessary in a democratic society' to interfere with Mr Michalak's continued residence in his home, for the protection of such rights; and that in turn required considering whether it was proportionate to make an order for possession."

65. Mance LJ found that this argument was effectively met by the reasoning in Sheffield Corporation v Smart. Mance LJ held:

"The reasoning and decision of this court in the Sheffield City Council case appear to me to be so closely applicable as to be incapable of satisfactory distinction in the present case. The scheme of ss 87 and 113 of the 1985 Act deliberately excludes a person in Mr Michalak's position from having security. The natural consequence, reinforced by the common law and statutory background relating to the grant and suspension of possession orders, is to entitle the local authority to recover possession of the flat. That scheme would be undermined if, following every death of a tenant, other residents of his flat could insist on arguing, as a defence in the possession proceedings, the general or particular merits of possession being retaken, when compared with the hardship to a particular remaining resident, whose home was involved. If and so far as any particular local authority was thought to be pursuing, either generally or in any individual case, a policy that was unfair, the possibility exists, subject to any appropriate time limits, of a challenge by way of judicial review, probably on the expanded basis mentioned in Ex p Daly. Where such a challenge is mounted, the court seized of the possession claim can adjourn pending resolution of the judicial review proceedings. The due respect for home required by art 8 is thus catered for by the availability of judicial review—or, as Laws LJ pointed out in the Sheffield City Council case, in the rare case where that is not so, by a residual readiness on the part of the court itself to consider the position under art 8."

66. I now turn to the application to this case of the Michalak case. The court has only very limited powers to postpone the operation of a possession order. The effect of the Michalak case is that, provided that the respondent acts fairly and reasonably, the court must, save in exceptional circumstances, proceed on the basis that the balance required to be struck by article 8(2) is struck by the scheme which the legislature has provided for possession orders to be made against trespassers in these circumstances. Laws LJ in the Smart case recognised that in rare cases the county court judge might have to consider an argument under article 8(2). When such an argument does arise, it will often be more convenient for the county court judge to deal with it rather than to adjourn the matter so that new proceedings can be issued in the Administrative Court. I would accept that one such rare case would be where the defendant shows that there is a real prospect of success in his or her argument that to grant possession would violate his or her right under article 8 taken in conjunction with article 14. That threshold test was satisfied in this case and so the judge was right to proceed to consider whether the argument was soundly based.
67. For the reasons given above, in my judgment, the judge was correct in his conclusion that the possession order would not violate any right of the appellant under article 8, taken in conjunction with article 14, or under article 8 on its own. Accordingly, I would dismiss this appeal.

Lord Justice Waller:

68. I agree that this appeal should be dismissed and will briefly summarise my reasons.
69. Prior to the coming into force of the Human Rights Act 1998 the position so far as this case was concerned would have been straightforward. The husband terminated the tenancy. If Mrs O'Sullivan (Mrs O'S) had acted prior to that termination to enforce her rights as a wife she might have been able to obtain relief under the Family Law Act 1996 or the Matrimonial Causes Act 1973, but she did not. The claimants' policy allowed for a person who was a joint tenant but whose tenancy had been terminated to have a new sole tenancy granted in their favour [see the policy quoted in paragraph 3 of my lady's judgment]. But it would not allow the grant of two tenancies. Even if Mrs O'S had been a joint tenant when the tenancy was terminated, the policy would not have allowed for a tenancy to be granted in her favour and a tenancy in her husband's favour.
70. At one time it was being argued that the claimants were acting so as to prevent Mrs O'S obtaining her rights as a wife under the above statutory provisions. That argument was not pursued. The alternative was to argue that the notice to quit was invalid; which would have enabled Mrs O'S to reassert such matrimonial rights as she had. That argument failed.
71. There is no dispute therefore that Mrs O'S was, and is a trespasser, and by virtue of the position established at common law, the claimants were entitled to possession. That entitlement to possession was subject to section 3 of the Protection From Eviction Act 1977, but a landlord, whether a public authority or otherwise, was entitled to enforce the contractual rights of a landlord and owner of property: see for example Mance LJ in Wandsworth London Borough Council v Michalak [2002] 4 All ER 1136 at 1153 paragraphs 57 and 58.
72. But the decision of a public authority landlord to seek possession, in the context of the legislation that exists in respect of housing for those in need, and in the context of the policy of such landlords, is susceptible to judicial review. The judge found, and there is no challenge to that finding, that the decision taken by the claimants in this case without for the moment regard to the possible Human Rights Act challenge, was unassailable [paragraph 16].
73. The claimants, prior to commencing proceedings for possession, offered to exercise discretion in her favour if she could establish that she was living in the premises over the period that she was alleging. They would, if the evidence had been produced, have offered a one bedroom flat. Mrs O'S did not produce the evidence and in any event wanted something more than a one bedroom flat because her grandson lived with her. That offer was, the claimants now say (and I do not understand it to be disputed ) outside the claimants' power, because it involved granting a second tenancy in a situation in which under the claimants' policy they should only have granted one. To grant a tenancy to Mrs O'S when a tenancy had already been granted to Mr O'S would have allowed Mrs O'S to have jumped the housing queue to the detriment of those already in that queue, and, as the judge held, would have contravened their Housing Allocation Scheme required under section 167 of the Housing Act 1996 [paragraph 24]. The offer is accordingly no longer open and the claimants served their notice to quit and took proceedings for possession.
74. Before the Human Rights Act there would have been no answer to the claim for possession as against Mrs O'S. The question is what difference has been made by the coming into force of the Human Rights Act. Attempts have been made in various different contexts relating to public authority landlords to suggest that the impact of the Human Rights Act and the incorporation of article 8 into domestic law has made a radical alteration [see in particular Sheffield City Council v Smart [2002] HLR 639 and Wandsworth LBC v Michalak]. That article is set out in paragraph 68 of my lady's judgment.
75. The courts have recognised that a tenant and even a trespasser may establish that particular premises constitute a home within article 8(1). On that there is no dispute and it is now accepted on the facts as they now turn out to be that this was Mrs O'S' home within article 8(1), and that the taking of possession of the same would prima facie infringe article 8(1).
76. The question, as the authorities demonstrate, is whether article 8(2) justifies the action of the claimants. When the courts have come to consider article 8(2), they of course have been concerned to see whether the enforcement is in accordance with the law. That is the most obvious protection against interference with a person's home. But arguments have also been addressed on behalf of tenants or former tenants seeking a ruling that although the landlord in seeking possession is acting in accordance with the law, the granting of possession is not "necessary in a democratic society in the interest of ….. or for the protection of the rights and freedoms of others". The scope for some free standing argument, in so far as it would result in some form of security of tenure, based simply on those words of the article is now, in the light of such authorities as Smart and Michalak, practically impossible. The judgment of Mance LJ in Michalak puts the matter with particular clarity. The landlord and owner of property has rights; other persons in need of social housing have at the very least expectations; there is extensive legislation dealing with housing needs and extensive learning in the common law as to the rights to possession on which the legislation has placed such curbs as it thinks appropriate. The court has time and again refused to get drawn into the arguments at what has been termed the macro level, and will not allow policy considerations to come back in at what has been termed the micro level. It is not open in my view to Mrs O'S to argue that there is some defence to the possession proceedings based on an assertion that although the claimants have acted in accordance with the law, and are otherwise entitled to an order for possession, it is unnecessary for the protection of the rights and freedom of others for possession to be granted.
77. I should just say that this does not mean that some relief against a public authority landlord may not be available. My lady has quoted from the judgments of Laws LJ in Smart and Mance LJ in Michalak. The passages she quotes support the view already expressed in paragraph 9, but recognise also that a decision to take possession proceedings may be attacked on the basis that it is unfair or discriminatory, in which event normally challenge by judicial review subject to proper time limits is available. There is also possibly a residual power in the court dealing with the possession proceedings, in rare cases where something exceptional happens since service of the notice to quit "which fundamentally alters the rights or wrongs of the proposed eviction" [see Laws LJ in Smart paragraph 40 ].
78. In this case the claimants acted on the basis of the facts as they knew them. That led them to grant a tenancy to Mr O'S. That led them to serve their notice to quit. The decision they took was a reasonable one on the facts as they appeared to them, and in accordance with their policy. The policy (apart from the possibility of discrimination to which I will turn) has not been challenged and nor could it be. There is no exceptional change in circumstances since the service of the notice.
79. It follows that reliance on article 8(2) alone as providing a basis on which the judge should have refused possession must fail.
80. Mr Short in reality recognised his difficulties if he concentrated on article 8(2) alone. It is for this reason he sought to mount an argument by reference to article 14 in combination with article 8(2). This argument is not raised in the defence and seems to have appeared for the first time in Mr Short's closing submissions before the judge. Although I am not sure Mr Short quite put it this way, the attack seems to me to be in reality an attack on the claimants' policy, and in that way an attack on the claimants' decision. Whether or not technically such an attack should not have been brought by Judicial Review to which the appropriate time limits should have applied it is unnecessary to resolve, because once the full policy is understood, and the decision placed in its proper context, it is possible to see that there simply is no discrimination.
81. Mr Short in his argument wished to concentrate on the possibility of there having been discrimination in the granting of the tenancy in 1970 a time when it was the custom to make the husband the tenant and not the husband and wife joint tenants. He wishes to argue that this "discriminatory practice" continued into the policy adopted by the claimants in relation to the situation where spouses separated. He would suggest that the male spouse who was left in the home would be treated differently from the female spouse left in the home, because the female spouse was likely not to have been a joint tenant, whereas the male would have been. But this is not a fair reflection of the policy which the claimants were applying in the decision being taken in this case. The policy they were applying in so far as it was reflected in the quotation in paragraph – of my lady's judgment, related to situations in which a joint tenancy had been brought to an end and the remaining "tenant" was eligible for rehousing. The remaining "tenant" would of course actually not be a tenant but a trespasser. But more importantly, it was an important aspect of the policy (not expressed in clear terms in the quotation, but as put in evidence and not challenged) only to grant one tenancy; that being either of the property in which the former tenant remained, or if that property was not of the right size by transfer to another property. It was contrary to the policy to grant two tenancies because that would enable one of the previous occupiers to jump the housing queue.
82. If the council had known the full facts when Mr O'S terminated the tenancy, and in considering whether to grant the one tenancy of the property or to transfer to a smaller property, had decided not to grant that tenancy to Mrs O'S because she was a female that would clearly have been a breach of article 14 in combination with article 8. If there had been a breach of the Convention either in 1970 or during the "window of opportunity" (which, for the reasons given by my lady there clearly was not), that might have affected the position. Furthermore, if knowing the full facts as they are now accepted, they had refused to grant Mrs O'S the tenancy simply on the grounds that she was never a joint tenant, it would have been arguable that a breach of article 14 together with article 8 was taking place. It could have been said that it was a policy which could now be seen to have had the effect of discriminating against wives, that placed Mrs O'S in the position of not being a joint tenant, and that in dealing with the question as to whom a tenancy should be granted it would not be right to place her in a disadvantageous position as a trespasser, as compared with a male former tenant who was also a trespasser.
83. But the policy that the claimants pursued in this instance of transferring the tenancy to Mr O'S was pursued in total ignorance of Mrs O'S' position. The policy thus pursued in relation to Mrs O'S was simply the policy of not granting more than one tenancy. Once the claimants cannot be criticised for getting themselves into the position of having transferred the tenancy to Mr O'S (and no such criticism is levelled at them), there is no question of discrimination, they simply could not grant a further tenancy.

Lord Justice Aldous:

84. I agree that the appeal should be dismissed. I have had the advantage of reading the judgment of Lord Justice Waller which reflects my views completely. Therefore there is no reason for me to add to that judgment.
ORDER: Appeal Dismissed. No order as to costs of appeal save that the costs of the 2^nd Defendant are to be assessed in accordance with the provisions of the Access to Justice Act 1999. Order for possession is not to be executed before 15 April 2003. (Order does not form part of the approved judgment)