020 7242 4986 or  0333 240 0591 London  |  Birmingham  |  Cardiff
News

Long residence "of little consequence" - the final nail in the coffin for article 8 defences?

The Court of Appeal has handed down judgment today in Holley v LB Hillingdon [2016] EWCA Civ 1052. The judgment will be welcomed by public sector landlords dealing with possession claims against 'failed successors', and cases involving public law defences based on failure to comply with policy.

Facts
Hillingdon granted a tenancy of a three bedroom property to the Appellant's grandmother in 1976. When she died, the Appellant's grandfather succeeded to the tenancy. He also died, leaving the Appellant and his brother in occupation. The Appellant claimed to have lived in the property for all of his life (some 37 years), and to suffer from anxiety, panic attacks and depression.

Hillingdon served notice to quit and sought possession. The Appellant relied on Article 8 and a public law defence based on a 'second succession' policy which had formed part of the local authority's allocation scheme.

The Circuit Judge determined that the defences were not seriously arguable, and made an outright possession order

Article 8 defence
In making a possession order, the Circuit Judge had relied on Etherton LJ's comment in Thurrock BC v West [2012] EWCA Civ 1435 (also a case concerning possession proceedings against a failed successor) that the fact the defendant had occupied the property for some time was "in itself irrelevant since Parliament has limited the number of successions to a secure tenancy however long a person's association with, and emotional ties to, a property, and that legislative policy does not infringe art.8."

The Appellant argued that the Circuit Judge had erred in her application of Thurrock BC v West, and sought to have the matter remitted to the County Court for a new hearing.

The Court of Appeal made the following important observations about the relevance of long residence in these kind of cases in paragraphs 15-16:

1. The period of residence, however long, will not on its own be sufficient to found an Article 8 defence in the second succession context, otherwise it is hard to see how the succession provisions of the 1985 Act could be compatible with the ECHR.

2. Length of residence may form part of an overall proportionality assessment, "in the sense that all the circumstances of the case may need to be reviewed, and their effect considered in the aggregate".

3. However, because Parliament has lawfully excluded second successions, length of residence is "unlikely to be a weighty factor in striking the necessary proportionality balance". A long period of residence may therefore form part of the circumstances, viewed as a whole, "but is, in itself, of little consequence".

The Court of Appeal declined to remit the matter to the County Court. The appeal should only be allowed if the judge's decision was wrong, and the Court of Appeal could decide for itself whether the defence had been seriously arguable.

In paragraph 19 the Court concluded that the Appellant's medical condition was not a factor "of anything like sufficient weight" to render a possession order disproportionate. His lifetime residence at the property "was neither exceptional, nor of significant weight, viewed on its own" – occupation of a property by successive generations "may not be typical, in the way that it was many years ago, but it is still by no means exceptional". No significant weight was added by "aggregating the appellant's medical condition with his long residence". The Court concluded that, on the facts, "the balance remains so firmly tilted in favour of the weighty considerations which justify the respondent seeking eviction" that there was no real prospect of a successful Article 8 defence.

Public law defence
The Appellant said he had a seriously arguable public law defence because although he did not fulfil the terms of the 'second succession' policy, Hillingdon had unlawfully failed to include in their allocation scheme, or alternatively failed to consider exercising, a residual discretion to allocate the property to him.

The Court of Appeal thought that the allocation scheme did arguably contain a form of residual discretion to make allocations in exceptional cases. However, it was not necessary to decide this point. In a passage that will be helpful to local authorities, the Court said that even if Hillingdon's policy had been too narrow, or it had not considered any residual discretion, it would still be necessary to consider whether the decision was in fact unlawful: "It is open to a public authority, when the lawfulness of its decision making process is challenged in this way, to seek to show that, even if its policies and process had complied with the relevant dictates of public law, it would inevitably have led to the same outcome for the complainant" (paragraph 28).

Although it generated sympathy, the Appellant's case came "nowhere near that degree of exceptionality that gave him a real rather than fanciful prospect of success under a residual discretion, however widely framed". Hillingdon had filed evidence detailing the shortage of social housing in its area, and it would have "undermined one of the fundamental principles of the respondent's allocation scheme, namely the prioritising of those in greatest need" to have preferred the Appellant over the other 1,161 households waiting for a three bedroom property (including significant numbers who were homeless, overcrowded or had disabilities).

Comment
This case shows, once again, the weakness of Article 8 as a potential defence to a possession claim. Even where a defendant has lived in a property all of his life and has some mental health problems, Article 8 will not even provide a seriously arguable defence against a local authority which is seeking to vindicate its property rights and re-allocate the property to others in need. This should have been clear following Pinnock and Powell (and Thurrock BC v West), but this judgment must surely represent the final nail in the coffin for Article 8 defences. It is no surprise that tenant lawyers have very much shifted their focus towards the Equality Act 2010 which seems to offer a more fruitful means of defence, particularly because public authorities still fail fully to appreciate what is required of them.

In terms of public law defences, it is useful to have a reminder that even if there has been some error in the decision making process leading up to the possession claim, that may not be the end of the story. It is always open to a social landlord to argue, as they would in traditional judicial review proceedings, that the outcome would have been the same even if the error had not occurred. That may well be the case where the facts are compelling. Clearly it is best to avoid making an error in the first place, and landlords should always ensure that any relevant policies are considered and legal duties discharged before a decision to seek possession is taken. But, if something has gone wrong then this judgment makes clear that all is not necessarily lost.

Ranjit Bhose QC and Emma Dring acted for the London Borough of Hillingdon.