From A to B

Until recently a claim for judicial review in the Administrative Court was the only way in which a tenant without security of tenure could challenge a public authority landlord’s claim for possession where entitlement had been established under the statutory and/or common law. This, the first of two articles by Jenny Oscroft on the topic, considers the development of the rights of non-secure tenants to defend an otherwise unqualified entitlement to possession on the basis of the right to respect for the home protected by Article 8 of the European Convention on Human Rights and the Human Rights Act 1998.

Just as the term ‘tolerated trespasser’ is finally consigned to the housing law history books, the latest legal jargon, ‘Gateway A’ and its equally inspiring partner ‘Gateway B’, is spreading further through the housing law blogosphere and consuming paragraph after paragraph of a quite overwhelming number of appellate court judgments, remarkable for their length and at times irreconcilable breadth of judicial elucidation.

The subject is possession proceedings where occupiers have no security of tenure under statutory schemes relating to social housing, such as non-secure tenancies or licences provided in pursuance of homelessness provisions of Part VII of the Housing Act 1996, and introductory and demoted tenancies governed by the regimes at Chapter 1 and Chapter 1A of Part V of the 1996 Act respectively. The issues are (i) the scope of a tenant’s ability to defend possession proceedings where the public authority landlord has an unqualified right to possession and (ii) the appropriate venue for running the defences that are available.

Kay

The gateways represent the response of the House of Lords to several Strasbourg decisions which held that, in certain circumstances, the lack of procedural safeguards in a claim for possession against trespassers or tenants without security of tenure was incompatible with Article 8. The gateways represent the only two routes through which an otherwise unqualified legislative entitlement to possession can be challenged. They were, in name at least, incarnated at paragraph 110 of the judgment in Kay v Lambeth LBC [2006] UKHL 10 in which Lord Hope held that where 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 were:

Gateway 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, 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.

Gateway 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, he or she should be permitted to do this provided again that the point is seriously arguable.

In neither case, Lord Hope said, could the challenge be based on the occupier’s personal circumstances, which it was to be assumed the legislature had sufficiently safeguarded by the fulfilment of the requirements for recovery of possession.

Qazi and Doherty

In Kay, the majority stated that they were affirming the earlier House of Lords judgment in Harrow LBC v Qazi [2004] 1 AC 983 in which it was held that the county courts, when faced with a defence based on Article 8 should proceed on the assumption that the domestic law is compatible with the occupier’s Convention rights, although there may be exceptional cases where a summary procedure which precluded any kind of judicial scrutiny of the factual basis for possession might be incompatible with Article 8. Mr Qazi’s joint secure tenancy had been determined by the service of a notice to quit by his ex-partner, his subsequent application for a sole tenancy failed on the basis was not entitled to family-sized occupation, and the local authority issued possession proceedings whilst he lived in the property with his new wife and family. Mr Qazi’s case did not prove to be exceptional and his appeal ultimately failed.  By contrast Doherty v Birmingham City Council [2008] UKHL 57, was an exceptional case; the local authority landlord sought possession against a family of gypsies upon whom had been served a notice to quit thereby determining their licence to occupy a pitch. The House of Lords found the lack of procedural safeguards in the legislative scheme, in that case the Mobile Homes Act 1983, to be incompatible with Article 8.

An Exceptional Case which is Seriously Arguable

Since Qazi, Kay and Doherty there has been a stream of judgments in the High Court and the Court of Appeal, testing the parameters of the gateway defences and highlighting the tensions emerging from some of the less cogent dicta of the House of Lords authorities. The list of case-law relied upon by legal advisers in county court possession proceedings has grown longer, and the ‘seriously arguable / exceptional case’ permission threshold identified in Qazi and Kay has proved increasingly difficult to resolve by the summary determination procedure originally envisaged by the House of Lords, not least because of the absence of consensus on the scope of the gateway defences themselves.

Of the two gateways, it is unsurprisingly the substance of a gateway B challenge which has proven the most difficult. Until the Supreme Court revisits Qazi, Kay and Doherty, many questions remain unanswered. To what degree can proportionality be raised under this gateway, if at all? When is a personal circumstance relevant to a gateway B defence? Or, to put it another way, and despite Lord Hope’s suggestion in Doherty to the contrary: is the time a tenant has spent living in a property relevant, or his or her attachments to an area, or the reason the ASB escalated during a particular period? If those aren’t examples of relevant considerations a housing officer is to take into account when considering whether to issue possession proceedings, what is the Defendant to raise and the county court to consider under a reasonableness (and if the Supreme Court so decides, a proportionality) review?

Court of Appeal in Mushin

The latest judgment of the Court of Appeal in the conjoined appeals of Manchester City Council v Mushin & Ors [2010] EWCA Civ 336 is more concise. It was expedited in order to give guidance as quickly as possible to courts dealing with these cases and to enable if possible the appeals to be linked with Pinnock v Manchester City Corporation [2009] EWCA Civ 852, the first Supreme Court hearing to consider the gateway arguments. A summary of the relevant principles established by Mushin are as follows:

1. Following Wandsworth v Winder [1985] AC 461, a gateway B defence may in principle be pursued in the county court, even where the occupier has no private right, but that is subject to any express legislative exclusion precluding such a defence.
2. Following Pinnock (and by parity of reasoning with the demoted tenancy regime), the appropriate venue for an introductory or demoted tenant to pursue a gateway B defence is the High Court.
3. Following Barber v LB Croydon [2010] EWCA Civ 51 and McGlynn v Welwyn Hatfield DC [2009] EWCA Civ 285 tenants of non-secure tenancies and licences provided under the homelessness provisions can raise gateway B defences in the county court.
4. Following the majority in Doherty and Kay, whilst conventional judicial review grounds are increasingly informed by principles of fundamental rights, a gateway B challenge does not permit a full proportionality review under Article 8(2) of the Convention.
5. Following Smith v Evans [2007] EWCA Civ 1318 and Kay and Doherty, it will only be in a truly exceptional case that it will even be seriously arguable that such a gateway B defence will succeed.
6. Following Barber and Central Bedfordshire Council v Taylor [2009] EWCA Civ 613, Gateway B challenges can apply to any decision of the local authority landlord relevant to possession which could have been the subject of an application for judicial review.
7. Following R (McLellan) v Bracknell Forest BC [2001] EWCA Civ 1510 and Manchester CC v Cochrane [1999] 1 WLR 809, the introductory tenancy regime is compatible with Article 8 and Article 6.
8. Following McLellan and Sheffield CC v Smart [2002] EWCA Civ 4, the homelessness regime is compatible with Articles 8 and 6.

Pinnock

Despite Mushin, uncertainty is still stalling proceedings in county courts, which is why it is hoped that the nine-strong panel of the Supreme Court which heard the appeal in Pinnock on 7 July, dealing with demoted tenants but hearing broader argument on other tenancies without security, will revisit Kay and Doherty comprehensively in their judgments.

It had been thought that Mushin would be heard with Pinnock, but it has been deferred until November, before only seven Justices, so it remains to be seen what will be dealt with now and what is left for later given the limited constitution of the November court. Kay has been to Strasbourg, so that judgment is also awaited, although how that will contribute to the resolution of the issues remains to be seen. What this debate finally needs is a coherent and comprehensive decision; it is unlikely the European Court will be the place that produces it.

Finally, the government has just issued its response to the 2009/2010 report of the Joint Committee on Human Rights and says the following about its own legislative agenda:

“The question of the appropriate level of scrutiny to be applied in summary possession cases is by no means straightforward. The House of Lords has found it necessary to consider this issue on three separate occasions and a fourth case, Pinnock v Manchester City Council, was heard by a panel of nine judges in the Supreme Court at the beginning of July. The position in this area will therefore be reviewed when the decisions of both the Supreme Court in Pinnock and the European Court of Human Rights in Kay v United Kingdom are received.”

So, the government will wait and see, as will public authority landlords, tenants and their lawyers. The not insignificant implications in both principle and practice of conducting what is in effect judicial review in the county court explains to some extent the time it is taking to grapple with these arguments properly, but it is getting harder and harder to justify the extended legal limbo of some four years, and counting.

Jenny Oscroft is a barrister at 2-3 Gray’s Inn Square (http://www.2-3graysinnsquare.co.uk).

The second article will focus on the case of Harrow v Wilson and will appear shortly.