Carl BIRCH and Others v the United Kingdom - 26393/10 [2011] ECHR 866 (2 June 2011)

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Application no. 26393/10
by Carl BIRCH and Others
against the United Kingdom
lodged on 5 May 2010

1. The applicants, Mr Carl Birch, Mr Russel Atkins, Mr David Lynch and Mr Paul Taylor are British nationals who were born in 1961, 1964, 1950 and 1965 respectively and live in Luton. They are represented before the Court by Ms S. Willman of Pierce Glynn Solicitors, a lawyer practising in London.

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

3. In March 1993 the third and fourth applicants, together with a number of others, took up residence at a semi-derelict former residential care home on the outskirts of Luton (“the property”). Although the property had been abandoned many years earlier, it was on land which was owned by Central Bedfordshire Council (formerly Bedfordshire County Council).

4. The occupiers, including the third and fourth applicants, formed a housing co-operative known as Housing Action Zone Limited (“HAZ”) and renamed the property HAZ Manor. They initially occupied the site as squatters or unlawful occupiers. However, in 1993 Bedfordshire County Council granted a lease to Luton City Council (“LCC”) for a fixed term of three years permitting a sub-lease to a housing association in order to grant assured shorthold tenancies to up to forty homeless people in a communal setting. LBC sub-let the property to Co-operative and Tenant Controlled Housing Limited (“CATCH”), which appointed HAZ as its managing agent. HAZ then granted tenancies of individual dwellings on the site.

5. The third and fourth applicants were first granted assured shorthold tenancies of dwellings in the property in early 1994.

6. The first applicant visited the property during the 1990s. He moved into one of the individual dwellings in 2001, initially agreeing to carry out work on the dwelling instead of paying rent. In 2004 he began to pay rent but as he was not claiming housing benefit he was not issued with a tenancy at that time. He eventually entered into an assured shorthold tenancy on 21 November 2004 for twelve months.

7. The second applicant moved into an individual dwelling in the property in or around 1998 and was granted an assured shorthold tenancy. He later moved to a different dwelling within the property and was granted an assured shorthold tenancy of the new premises for six months commencing on 15 December 2001.

8. When the lease between Bedfordshire County Council and LCC expired in 1996 it was not extended but negotiations continued for a number of years. During this period the applicants continued to live in the property and HAZ continued to grant them assured shorthold tenancies of dwellings on the site.

9. The negotiations ended in 2005 without a new lease being agreed. In 2006 Bedfordshire County Council decided that it wanted vacant possession of the site so it wrote to the occupiers asking them to leave. On 22 February 2007 the Council issued proceedings claiming possession of the site on which the property was situated. On 22 March 2007 a District Judge ordered that the Council should recover possession of the site, excluding those parts occupied by the applicants. On 22 July 2007 the Council commenced summary possession proceedings in Luton County Court in respect of the remaining parts of the site. The applicants entered a defence arguing, inter alia, that the claim for possession constituted an unjustified interference with their rights under Article 8 of the Convention.

10. On 1 July 2008 the judge made an order for possession and refused to grant the applicants permission to appeal. He held that the applicants had no legal right to remain on the property as they had become trespassers following the expiry of LCC’s lease on 10 June 1996. He refused to consider the Article 8 defence or make any findings on their personal circumstances because he considered himself to be bound by Kay and others v. Lambeth LBC.

11. On 30 July 2008 the judgments of the House of Lords in Doherty v. Birmingham CC [2008] UKHL 57 were delivered. The Court of Appeal subsequently granted the applicants leave to appeal on the ground that the judge failed to deal with or make any findings as to their Article 8 Defence.

12. The Court of Appeal delivered its judgment on 23 June 2009. It considered the impact of Doherty and concluded that where the facts of a case were similar to those in Kay, a court post-Kay and Doherty would be in much the same position as it had always been in, even prior to the incorporation of the Convention into domestic law. As the facts of the present case were similar to those of Kay, the Court of Appeal dismissed the appeal.

13. On 5 November 2009 the Supreme Court refused to grant the applicants permission to appeal and it was agreed that the applicants would vacate the site by 6 December 2009.

14. The first applicant moved out of the property on 30 November 2009. He has not secured any alternative settled accommodation. As a single man without a child or health need rendering him in priority need, he is not entitled to statutory rehousing from the local housing authority.

15. The second applicant moved out of the property on 18 July 2008. He subsequently moved into private rented accommodation with his seven year old daughter.

16. The third applicant moved out of the property on 16 November 2006 because he had a heart attack and was admitted to hospital. Stress and uncertainty caused by the legal proceedings prevented him from returning. He has since moved into a private rented flat with his son.

17. The fourth applicant left the property on 6 December 2009. After leaving the property he squatted on another site but was evicted from there in March 2010. He is currently homeless. As he has experienced mental health problems, he has been referred to a psychiatrist.

18. To the best of the applicants’ knowledge, the property has remained vacant and there are no proposals for redevelopment.

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

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

“... Where domestic law provides for personal circumstances to be taken into account, as in a case where the statutory test is whether it would be reasonable to make a possession order, then a fair opportunity must be given for the arguments in favour of the occupier to be presented. But if the requirements of the law have been established and the right to recover possession is unqualified, the only situations in which it would be open to the court to refrain from proceeding to summary judgment and making the possession order are these: (a) if a seriously arguable point is raised that the law which enables the court to make the possession order is incompatible with article 8 [“gateway (a)”], the county court in the exercise of its jurisdiction under the Human Rights Act 1998 should deal with the argument in one or other of two ways: (i) by giving effect to the law, so far as it is possible for it do so under section 3, in a way that is compatible with article 8, or (ii) by adjourning the proceedings to enable the compatibility issue to be dealt with in the High Court; (b) if the defendant wishes to challenge the decision of a public authority to recover possession as an improper exercise of its powers at common law on the ground that it was a decision that no reasonable person would consider justifiable [“gateway (b)”], he should be permitted to do this provided again that the point is seriously arguable ...”

21. Lord Brown of Eaton-under-Heywood referred to the amendment to the 1968 Act allowing the County Court to suspend, for up to twelve months at a time, any possession order in respect of a local authority caravan site and noted:

“... Now, therefore, the county court would be entitled to suspend the order made against someone in Mr Connors’ position; previously, it was not.

By the same token moreover that the county court judge would have been unable, under the pre-existing law, to decline or postpone a possession order in the case of someone in Mr Connors’ position, so too in my judgment he is unable in other cases to give greater effect or weight to the occupier’s right to respect for his home than is allowed for under domestic law ...”

“The difficulty with such [a public law] defence, however, is that it would be well nigh impossible to make good, the challenge necessarily postulating that under domestic property law the claimant authority was entitled to possession. Accordingly the argument could only be that no reasonable public authority could properly invoke that domestic law right. This would be a more stringent test than would apply were the court ... under a primary duty to reach its own judgment on the justifiability of making a possession order.

For my part I think that such an argument could perhaps have been mounted successfully in Connors: having regard to the great length of time (most of the preceding sixteen years) that that gypsy family had resided on the site, it was unreasonable, indeed grossly unfair, for the local authority to claim possession merely on the basis of a determined licence without the need to make good any underlying reason for taking such precipitate action ...

It is difficult to suppose, however, that a defence based on a public law challenge of this character to a public authority’s decision to pursue its domestic law rights could properly succeed except in such an infinitely rare case as Connors itself ...”

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

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

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

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

24. On 3 November 2010 the Supreme Court sitting as a panel of nine judges in Manchester City Council v. Pinnock [2010] UKSC 45 (“Pinnock”) considered the application of Article 8 to a claim for possession brought against a demoted tenant under Chapter 1A of Part V of the Housing Act 1996 (as inserted by paragraph 1 of Schedule 1 to the Anti-social Behaviour Act 2003). Following a review of the case-law, the Supreme Court considered the following propositions to be well established in the jurisprudence of this Court:

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

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

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

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

25. The Supreme Court thus considered that in order for domestic law to be compatible with Article 8 of the Convention, where a court was asked by a local authority to make an order for possession of a person’s home, the court had to have the power to assess the proportionality of making the order, and, in making that assessment, to resolve any relevant dispute of fact.

26. In terms of the practical implications of this principle, the Supreme Court noted that if domestic law justified an outright order for possession, the effect of Article 8 could, albeit in exceptional cases, justify granting an extended period for possession, suspending the order for possession on the happening of an event, or even refusing an order altogether.

27. Finally, the court observed that the need for a court to have the ability to assess the Article 8 proportionality of making a possession order in respect of a person’s home might require certain statutory and procedural provisions to be revisited.

28. In London Borough of Hounslow v Powell and Others [2011] UKSC 8 (“Powell”), handed down on 23 February 2011, the Supreme Court held that the principle in Pinnock applied not only to demoted tenancies but to all cases where a local authority was seeking possession in respect of a property that constituted a person’s home for the purposes of Article 8.

29. Lord Hope observed that following Pinnock the court had to have the ability to assess the Article 8 proportionality of making a possession order in respect of a person’s home, even if his or her right to occupation had come to an end. The question of whether the property in question constitutes the defendant’s “home” was likely to be of concern only in cases where an order for possession was sought against a defendant who had only recently moved into accommodation on a temporary or precarious basis. Therefore, in most cases it could be taken for granted that a claim by a person who was in lawful occupation to remain in possession would attract the protection of article 8.

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

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

“The proportionality of making the order for possession at the suit of the local authority will be supported by the fact that making the order would (a) serve to vindicate the authority’s ownership rights; and (b) enable the authority to comply with its public duties in relation to the allocation and management of its housing stock. Various examples were given of the scope of the duties that the second legitimate aim encompasses – the fair allocation of its housing, the redevelopment of the site, the refurbishing of sub-standard accommodation, the need to move people who are in accommodation that now exceeds their needs and the need to move vulnerable people into sheltered or warden-assisted housing. In Kryvitska and Kryvitskyy v Ukraine (Application No 30856/03) (unreported) given 2 December 2010, para 46 the Strasbourg court indicated that the first aim on its own will not suffice where the owner is the State itself. But, taken together, the twin aims will satisfy the legitimate aim requirement.

So, as was made clear in Pinnock, para 53, there will be no need, in the overwhelming majority of cases, for the local authority to explain and justify its reasons for seeking a possession order. It will be enough that the authority is entitled to possession because the statutory pre-requisites have been satisfied and that it is to be assumed to be acting in accordance with its duties in the distribution and management of its housing stock. The court need be concerned only with the occupier’s personal circumstances and any factual objections she may raise and, in the light only of what view it takes of them, with the question whether making the order for possession would be lawful and proportionate. If it decides to entertain the point because it is seriously arguable, it must give a reasoned decision as to whether or not a fair balance would be struck by making the order that is being sought by the local authority: Kryvitska and Kryvitskyy v Ukraine, para 44.

In the ordinary case the relevant facts will be encapsulated entirely in the two legitimate aims that were identified in Pinnock, para 52. It is against those aims, which should always be taken for granted, that the court must weigh up any factual objections that may be raised by the defendant and what she has to say about her personal circumstances. It is only if a defence has been put forward that is seriously arguable that it will be necessary for the judge to adjourn the case for further consideration of the issues of lawfulness or proportionality. If this test is not met, the order for possession should be granted. This is all that is needed to satisfy the procedural imperative that has been laid down by the Strasbourg court.”

The applicants complain under Article 8 of the Convention that the possession proceedings brought against them violated their right to respect for their home.

Was the interference with the applicants’ respect for their home, within the meaning of Article 8 § 1 of the Convention, necessary in terms of Article 8 § 2?

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You are here: BAILII >> Databases >> European Court of Human Rights >> Carl BIRCH and Others v the United Kingdom - 26393/10 [2011] ECHR 866 (2 June 2011) URL: http://www.bailii.org/eu/cases/ECHR/2011/866.html Cite as: [2011] ECHR 866

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