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England and Wales High Court (Queen's Bench Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Wilson v London Borough of Harrow [2010] EWHC 1574 (QB) (28 June 2010) URL: http://www.bailii.org/ew/cases/EWHC/QB/2010/1574.html Cite as: [2010] EWHC 1574 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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MRS LANA WILSON (By her litigation friend the Official Solicitor) |
Applicant |
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- and – |
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LONDON BOROUGH OF HARROW |
Respondent |
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Ranjit Bhose and Jennifer Oscroft (instructed by Director of Legal Services, London Borough of Harrow) for the Defendant
Hearing dates: 13th & 14th May 2010
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Crown Copyright ©
Mr Justice Foskett :
The applications
The issue
The general background
The history
"I have enclosed a Notice to Quit which you may wish to serve upon the Council, as previously explained if you serve this Notice upon the Council it will end the tenancy for both yourself and your wife. Upon expiry of the Notice your wife would have no right to remain in occupation of 77 Churchill Place. I would therefore urge you to seek legal advice before making a decision on whether or not to end the tenancy. Free legal advice is available from the Housing Advice Centre, they can be contacted on 020 8861 4079."
"Please note that by signing this Notice to Quit you will end the joint tenancy and anyone in occupation of the property will have no legal right to remain there. The Council will decide if they should be granted the tenancy of this or any other property.
You may wish to seek advice from a Solicitor, the Housing Advice Centre or the Citizens Advice Bureau."
"3.4 As we would be pursuing possession through the courts we would be acting legally. Only final limb 8(2) could be used to justify evicting Lana Wilson i.e. to protect the rights and freedoms of others.
3.5 We have no apparent statutory duty to house Lana Wilson in the 2 bedroom accommodation she presently occupies.
3.6 There are 365 homeless households in temporary accommodation which required two bedroom accommodation. Granting the tenancy of a two bedroom property to Lana Wilson would deny one of these households the opportunity of a secure tenancy of this property and further delay an offer of permanent accommodation.
3.7 Additionally, it would further prejudice those existing Council tenants and those tenants of RSL's on the Housing Register who require 2 bedroom accommodation. There were at 13/08/07, 165 households on the Transfer Register seeking 2 bedroom accommodation. Their transfers would potentially be delayed by granting Lana Wilson the tenancy of this property.
3.8 There were a further 968 households on the Housing Register at 13/08/07 seeking 2 bedroom accommodation. Their prospects of receiving an offer of accommodation would be reduced by granting Lana Wilson the tenancy of this property.
3.9 Based on the facts set out above, the Council would be justified in seeking and enforcing a Possession Order against Lana Wilson to protect the rights and freedom of a significant number of other people."
The net effect
The Article 8 argument in the context of the rule in Monk
Introduction
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
The general proposition
"73 The legislation relating to housing which has been enacted by Parliament is complex and much of it is designed to give statutory protection to tenants. It is necessary only to mention, by way of illustration, the discretionary grounds on which possession may be given which are set out in Schedule 2 to the Housing Act 1985 and the protection which is given to introductory tenancies in Part V of the Housing Act 1996. Where provisions of that kind are in issue, their application to the case where an order for possession is sought must be determined by the county court. In these cases the reasonableness or proportionality of making the order will arise because a decision on this point is required by the statute.
74 The present case, however, is not a case of that kind. The joint tenancy has been brought to an end by the service of a tenant's notice to quit. The position in domestic law is that in these circumstances, as a result of the joint tenant's action and in terms of the lease, the whole of the joint tenancy is terminated. So neither joint tenant has any longer any right to remain in the premises. The county court has no discretion as to whether or not it should grant an order for possession in these circumstances. In domestic law the making of an order for possession follows automatically. It has not been suggested that the fact that this is what the law provides is itself a violation of article 8. That proposition would not be sustainable in view of the fundamentally subsidiary role of the Convention, which gives special weight to the role of the domestic policy maker: see Hatton v United Kingdom (2003) 37 EHRR 611, para 97. The only question is whether it is a violation of the respondent's article 8 rights for the law to be applied as it stands to his case.
…
84 I agree … that the Strasbourg jurisprudence has shown that contractual and proprietary rights to possession cannot be defeated by a defence based on article 8. It follows that the question whether any interference is permitted by article 8(2) does not require, in this case, to be considered by the county court…."
"103 But no such balancing exercise need be conducted where its outcome is a foregone conclusion. In the present case, as in S v United Kingdom 47 DR 274, the local authority had an immediate right to possession. The premises were Mr Qazi's home, and evicting him would obviously amount to an interference with his enjoyment of the premises as his home. But his right to occupy them as such was circumscribed by the terms of his tenancy and had come to an end. Eviction was plainly necessary to protect the rights of the local authority as landowner. Its obligation to "respect" Mr Qazi's home was not infringed by its requirement that he vacate the premises at the expiry of the period during which it had agreed that he might occupy them. There was simply no balance to be struck.
…
107 It follows that I do not accept without qualification the suggestion … that, once it is established that the premises in question are the applicant's home, an order for possession amounts to an interference with (and prima facie an infringement of) his article 8 right of respect for his home. The qualification, which is built into the provisions of article 8 itself, is that save in wholly exceptional circumstances (which it has not been suggested exist in the present case …) there is no lack of respect, and no infringement of article 8, where the order is made in favour of the person entitled to possession by national law."
125 It is, of course, the case that the United Kingdom, in common, I expect, with all other signatories to the Convention, has enacted elaborate social housing legislation. The degree of security of tenure provided to tenants of residential property on the expiry of their tenancies is highly complex. There are assured shorthold tenancies, secure tenancies, non-secure tenancies, introductory tenancies, service tenancies, furnished tenancies and, no doubt, others. The manner in which these tenancies can be brought to an end varies and depends on the contents of the relevant legislation. The respective rights of landlord and tenant, after termination of the tenancy, similarly depend on the content of the legislation. If, under the relevant provisions of the relevant legislation, the tenant has no right to remain in possession, the case is no different from that in which there is no relevant legislation at all. If, pursuant to the provisions of the relevant legislation, the tenant is entitled to remain in possession after the termination of his tenancy, there will have been a corresponding diminution of the landlord's property rights. This diminution will put article 1 of the First Protocol into play. But social housing legislation of this character is well justifiable on the public interest grounds provided for by the article: James v United Kingdom (1986) 8 EHRR 123. If, on the other hand, the tenant has no right to remain in possession as against the landlord he cannot claim such right under article 8. To hold otherwise, to hold that article 8 can vest property rights in the tenant and diminish the landlord's contractual and property rights, would be to attribute to article 8 an effect that it was never intended to have. Article 8 was intended to deal with the arbitrary intrusion by state or public authorities into a citizen's home life. It was not intended to operate as an amendment or improvement of whatever social housing legislation the signatory state had chosen to enact. There is nothing in Strasbourg case law to suggest the contrary.
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142 R (McLellan) v Bracknell Forest Borough Council [2002] QB 1129 concerned an introductory tenancy. The tenancy had been duly terminated by the local authority landlord in accordance with the procedures prescribed by the relevant legislation. The tenant had no contractual or proprietary right, as against the landlord, to remain in possession. Counsel for the landlord submitted that "the rights of the tenant to occupy the premises were simply in accordance with [the introductory tenancy] scheme" (para 37) and that article 8 had no application. But the Court of Appeal disagreed and held that "the question to be considered is whether an eviction was in accordance with the law, and whether it was necessary for the protection of the rights and freedoms of others": per Waller LJ, in para 42. Waller LJ went on to say that even in a case where the landlord was a private landlord, in which case article 8(2) would appear to have no application, the court, as a "public authority", would have to consider, before making a possession order, whether an article 8(2) justification was established.
143 My Lords, the remarks of Waller LJ to which I have just referred, which follow with inescapable logic from the proposition that in all cases where possession is sought of property which constitutes the defendant's home an article 8(2) justification must be shown, demonstrate, in my respectful submission, why the proposition cannot be right. Waller LJ's remarks have the effect that the words in article 8(2) "by a public authority" are deleted from the article for the purpose of its application in domestic law. A court, being a public authority, cannot, it is said, give a private owner of residential property the possession order to which under the ordinary law he would be entitled against a person occupying the property as his home but who has no contractual or proprietary right to remain there, unless the making of the order can be justified under article 8(2). If this is right, it would give article 8 a significantly broader scope in its application than its language justifies. The words "by a public authority" become otiose.
144 The error is not in Waller LJ's logic, but in the proposition itself. If article 8 does not vest in the home-occupier any contractual or proprietary right that he would not otherwise have, and does not diminish or detract from the contractual or proprietary rights of the owner who is seeking possession, the problem identified by Waller LJ does not arise. The fate of every possession application will be determined by the respective contractual and proprietary rights of the parties. Article 8 can never constitute an answer. In my opinion the McLellan case, like the Donoghue case [2002] QB 48, was correctly decided but for the wrong reason.
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151 … If Mr Qazi has no contractual or proprietary right under the ordinary law to resist the council's claim for possession, and it is accepted he has not, the acceptance by the court of a defence based on article 8 would give him a possessory right over 31 Hutton Lane that he would not otherwise have. It would deprive the council of its right under the ordinary law to immediate possession. It would constitute an amendment of the domestic social housing legislation. It would give article 8 an effect it was never intended to have and which it has never been given by the Strasbourg tribunals responsible for implementing the Convention.
152 If the reality of the matter is, as I believe it is, that an article 8 defence can never prevail against an owner entitled under the ordinary law to possession, your Lordships should, in my opinion, say so. Remission of the case to the county court for the county court to say so would be pointless….
"[The House of Lords held] that the domestic law gave the housing authority an unqualified right to immediate possession once service of the notice to quit had terminated the joint tenancy and that, since it had been clear from the tenancy at its outset that it could be so terminated (as it was in this instant case) and since the premises (once recovered) would be available for letting to other persons in need of housing within the authority's area, there was no infringement of the Defendant's article 8 right to respect for his home and that, accordingly, no question arose for determination under article 8(2)."
"43. The present appeals illustrate the potential pitfalls of a rule based on a finding of clear inconsistency …. That degree of certainty is best achieved by adhering, even in the Convention context, to our rules of precedent. It will of course be the duty of judges to review Convention arguments addressed to them, and if they consider a binding precedent to be, or possibly to be, inconsistent with Strasbourg authority, they may express their views and give leave to appeal, as the Court of Appeal did here. Leap-frog appeals may be appropriate. In this way, in my opinion, they discharge their duty under the 1998 Act. But they should follow the binding precedent, as again the Court of Appeal did here."
The refinement of the argument
(1) A secure tenancy which is—
(a) a periodic tenancy, .
is not capable of being assigned except in the cases mentioned in subsection (3).
...
(3) The exceptions are—
(a) an assignment in accordance with section 92 (assignment by way of exchange);
(b) an assignment in pursuance of an order made under—
(i) section 24 of the Matrimonial Causes Act 1973 (property adjustment orders in connection with matrimonial proceedings),
(ii) section 17(1) of the Matrimonial and Family Proceedings Act 1984 (property adjustment orders after overseas divorce, &c.), ...
(iii) paragraph 1 of Schedule 1 to the Children Act 1989 (orders for financial relief against parents), or
(iv) Part 2 of Schedule 5, or paragraph 9(2) or (3) of Schedule 7, to the Civil Partnership Act 2004 (property adjustment orders in connection with civil partnership proceedings or after overseas dissolution of civil partnership, etc.)
(c) an assignment to a person who would be qualified to succeed the tenant if the tenant died immediately before the assignment.
The subsidiary issue
Conclusion