Supreme Court rejects human rights challenge over rule in Monk on notices to quit

The longstanding rule in Monk regarding the impact of a notice to quit given by a joint periodic secure tenant is not incompatible with the European Convention on Human Rights, the Supreme Court has ruled.

The judgment in Sims v Dacorum Borough Council UKSC 2013/0264 is one of two major housing law rulings to be issued by the court today (the other case – R (CN) v Lewisham – concerns evictions from temporary accommodation).

The background to the Sims case was that Mr Sims and his wife were joint periodic secure tenants of a three-bedroom house owned by Dacorum Borough Council.

On the break-up of their marriage, Mrs Sims left the property and gave notice to quit to the council which had the effect of terminating the tenancy (as per the rule in Hammersmith & Fulham LBC v Monk [1992] 1 AC 478.)

Dacorum obtained a possession order against Mr Sims. He appealed, arguing that the rule in Monk was incompatible with Article 8 of the European Convention on Human Rights (the right to a private and family life) and Article 1 of the First Protocol to the ECHR (the entitlement to peaceful enjoyment of possessions).

The Court of Appeal was bound by the House of Lords’ decision in Monk and dismissed the appeal. It also refused permission to appeal to the Supreme Court.

Mr Sims then appealed to the Supreme Court directly. But a panel of seven justices has today (12 November) unanimously dismissed the appeal.

Counsel for the appellant retreated from the suggestion that the Supreme Court should revisit the decision in Monk, but argued that the effect of that decision in the present case infringed Mr Sims’ rights under Article 8, or under A1P1.

Clause 100 provided that the tenancy could be determined by one only of the tenants and Clause 101 provided that if that occurred, Dacorum could decide to permit him to stay in the house.

Mrs Sims had determined the tenancy in accordance with clause 100 and the council did consider whether to let Mr Sims remain in accordance with clause 101 and decided not to let him do so.

Lord Neuberger, who gave the judgment of the court, said: “Given that Mr Sims was deprived of his property in circumstances, and in a way, which was specifically provided for in the agreement which created it, his A1P1 claim is plainly very hard to sustain.”

The judge said the only two arguments which he thought Mr Sims could "even conceivably raise" in those circumstances were (i) that clause 100 was irrational or at least so unreasonable as to offend the right to enjoy the property concerned, or (ii) that Dacorum unfairly or irrationally operated clause 101.

“Assuming (without deciding) that those arguments are open to him in principle in relation to his A1P1 claim, it is nonetheless plain that they fail on the facts,” Lord Neuberger said.

The judge added that clause 100 was consistent with the common law principle in Monk, and the effect of clause 100 was mitigated by clause 101.

Lord Neuberger acknowledged that the rule in Monk was harsh, but pointed out that if the position was otherwise then it would be a harsh result for the landlord.

The deputy district judge, he added, had considered Dacorum’s operation of clause 101, and concluded that procedurally Mr Sims had been accorded ample opportunity to present his case and that Dacorum had carefully considered the position and had fully reviewed its own decision.

Lord Neuberger said: “In my view, the Deputy District Judge’s conclusion was, to put it at its very lowest, one to which she was entitled to come for the reasons that she gave. Indeed, I would go further, and say that, in light of her conclusions of primary fact, she reached the only appropriate conclusion she could have reached. In these circumstances, I would reject Mr Sims’s case based on A1P1."

On the Article 8 element of the appeal, the Supreme Court President said Mr Sims had been entitled to raise the question of the proportionality of the council’s pursuit of the claim for possession of the house in light of previous decisions of the House of Lords and Supreme Court in Pinnock v Manchester City Council and Hounslow LBC v Powell.

“However, in this case, that point gets Mr Sims nowhere,” Lord Neuberger said. The deputy district judge had been “plainly correct” when coming to the view that it was lawful and proportionate to make an order for possession in this case.

Lord Neuberger said he accepted that the effect of the service of the notice to quit was to put at risk Mr Sims’s enjoyment of his home. He also accepted that different considerations might apply for Article 8 purposes to Mr Sims, who was at risk of losing what had been his family home for many years, from those considerations that applied to temporarily housed homeless people who were at risk of losing their temporary accommodation as in R (CN) v Lewisham.

However, the judge said that this did not undermine the point that full respect had been accorded to Mr Sims’ Article 8 rights by the facts that:

1. His tenancy was determined in accordance with its contractual terms to which he had agreed in clause 100;
2. He was entitled to the benefit of clause 101;
3. Under the Protection from Eviction Act 1977 he could not be evicted without a court order;
4. The court would have to be satisfied that Dacorum was entitled to evict him as a matter of domestic law; and
5. The court could not make such an order without permitting him to raise a claim that it would be disproportionate to evict him, in accordance with the reasoning in Pinnock and Powell.

Accordingly, Lord Neuberger concluded, Mr Sims’ case case on Article 8 failed.

Ranjit Bhose QC, Andrew Lane and Dean Underwood appeared for Dacorum, instructed by its legal department.

Bhose said: “It is important to note the emphasis placed by the judgment of the Supreme Court on the interests of the landlord and departing joint tenant, and not just the remaining tenant, in considering Article 1P rights. Further, the attempt by those representing Mr Sims to seek Article 8 engagement at the point of the service of a notice to quit was also roundly rejected.

"This is good news for local housing authorities and housing associations in particular as they seek to address the increasing pressures on their housing stock. We are aware of a number of cases being put on hold awaiting this judgment and which can now proceed.” 

Mark Brookes, Group Manager in Dacorum Borough Council’s Legal Governance Department, added: “We are especially happy that the Supreme Court confirmed that the council had acted fairly and properly throughout in dealing with this matter. We do not take decisions to seek possession of property lightly and always seek to deal with an individual’s concerns fairly whilst appreciating the wider pressures on a diminishing stock.”

Andrew Arden QC, Toby Vanhegan, Justin Bates and Amy Knight of Arden Chambers appeared for Mr Sims, instructed by ARKrights Solicitors.

Martin Chamberlain QC and Oliver Jones of Brick Court Chambers appeared for the Treasury Solicitors.