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Thurrock Borough Council V West [2012] EWCA Civ 1435

In an important judgment for social landlords, the Court of Appeal has allowed an appeal against an Order dismissing the local authority's possession claim against a "second successor" who had argued that an order for possession would amount to a disproportionate interference with his Article 8 rights.

Thurrock Borough Council, represented in the Court of Appeal by Ryan Kohli (2006), successfully appealed against the District Judge's decision and Etherton LJ held that the Court below had "assumed for itself the power Parliament has conferred on the Council for the various and numerous persons who have a right to social housing".

Mr West was the grandson of joint tenants who occupied social housing in Thurrock. His grandfather died and his grandmother succeeded to the tenancy. As there had already been a single succession Mr West had no private law or statutory right to further succeed to the tenancy as the combined effect of ss. 87 – 89 of the Housing Act 1985 excluded him from succession.

The local authority issued a possession claim which was defended on the basis that there would be an unlawful interference with Mr West's Article 8 rights if an order for possession were granted. Mr West resided at the property with his partner and baby son and argued that the local authority would have a duty to re-house the family in any event as they would fall within a priority need category. It followed, according to Mr West, that it would be disproportionate to evict him from a three-bedroom home only to re-house him in another two-bedroom home in accordance with the local authority's duties pursuant to Part VII of the Housing Act 1996. In light of these factors and the strength of his local connections, he argued that his Article 8 rights were being unlawfully infringed.

The Court of Appeal disagreed and held the Judge below erred in holding that there was any disproportionate interference. It was expressly recognised that Mr West and his family are entirely typical of those who occupy social housing. Their case was wholly unexceptional and did not even satisfy the seriously arguable threshold which would have to be passed in order for their defence to be considered substantively.

Etherton LJ summarised eight principles to which regard can be had in Article 8 defences to claims for possession and concluded,

"Sympathy for the predicament of the respondent and his family, which is entirely understandable, cannot obscure the remarkable effect of the District Judge's decision. That decision precludes the Council from recovering possession of the Property from persons who have never been granted by the Council any right to occupy it, and whose housing needs are less than the accommodation provided by the Property, and confers on those persons a right to remain without any limitation of time or other conditionality, in conflict with the lawful legislative policy limiting succession rights to secure tenancies. It deprives the Council of its public right and duty to make management decisions about the Property as part of its housing stock."

For the full Judgment please visit http://www.bailii.org/ew/cases/EWCA/Civ/2012/1435.html