Challenging times
The Court of Appeal has recently issued an important ruling on human rights and public law challenges in housing cases. Scott Greenwood examines the judgement.
The law on human rights under convention challenges and on traditional public law (judicial review) challenges against public authority decisions is rapidly developing in the field of housing practice. There has been much confusion from previous authorities as to how a challenge should be dealt with by the lower courts and what test should be applied – the test of Wednesbury unreasonableness or the convention test of proportionality.
In Manchester City Council v Mushin [2010] EWCA Civ 336, the Court of Appeal had an opportunity to consider public law and human rights arguments in relation to local authority introductory tenancies, demoted tenancies and unsecure occupancy where the occupier has been provided with temporary accommodation under homelessness provisions. The appeals involved five cases where a local authority had brought possession proceedings. The appeals were listed and heard together as they raised issues of concern to judges and district judges hearing such possession proceedings in future cases.
The court had to consider the following issues:
- Where temporary accommodation has been provided under the homelessness provisions, could a defendant rely on a Gateway (b) defence (Public Law defence) in the County Court;
- Whether the statutory housing scheme under consideration excluded the taking of a public law defence in the County Court;
- Whether the court should undertake a full convention proportionality review where a Gateway B (Public Law defence);
- Whether any steps taken by a local authority to obtain a possession order once a Notice to Quit had been served could be characterised as separate decisions amenable to public law review by the County Court under Gateway (b).
The Court of Appeal ruled as follows:
- An unsecured occupant generally could not rely on a public law defence;
- In cases involving an introductory tenancy or demoted tenancy, a County Court had no jurisdiction to consider a public law defence. The only power the court has in such cases is to adjourn the proceedings to enable an application to be made for judicial review if such a point was seriously arguable under traditional judicial review principles.
- A public law Gateway (b) challenge to a decision by a local authority to seek possession did not permit a proportionality review under Article 8(2) of the convention.
- For the County Court to adjourn the proceedings there had to be a highly exceptional circumstance for the court to make that decision to adjourn. The Court of Appeal concluded that the introductory tenancy schemes and the homelessness legislation are Article 8 compliant and it was only in exceptional circumstances that any Gateway (b) defence to possession proceedings could be established.
- The decisions which could be the subject of judicial review by the County Court under Gateway (b) were the original decision to seek possession and any other decision taken to proceed with the implementation of the possession order.
Comment
In summary, what the court is saying is that where there is a challenge on public law grounds against a decision to enforce either in an introductory tenancy or a demoted tenancy, any such challenge has to take place in the High Court (the Administrative Court) and not in the County Court.
For the County Court to adjourn proceedings to allow a case to be heard in the High Court there has to be exceptional circumstances. If the challenge is in relation to temporary accommodation under homelessness provisions, the court generally does not have the jurisdiction to consider a public law Gateway (b) defence. Further, for a court to consider a Gateway B defence there is no need to focus on the issue of proportionality as the examination of reasonableness in accordance with traditional judicial review concepts is sufficient.
Scott Greenwood is a partner in the housing team at Coffin Mew. He can be contacted on 0800 827 168 and via This email address is being protected from spambots. You need JavaScript enabled to view it..
