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Public law and Article 8 at eviction stage

On 30th July 2012 Ingrid Simler QC, sitting as a Deputy High Court Judge, handed down judgment in JL-v- (1) Secretary of State for Defence (2) Leeds City Council (Interested Party) [2012] EWHC 2216 (Admin).

The case concerned a claim for possession of residential premises occupied by the disabled wife of a former army officer (‘W’) and her two adult daughters. One daughter had mental health problems; the other was carer for her sister and for W and had a 13 year old son with Crohn’s disease. W did not have security of tenure. The MOD obtained an order for possession of the premises on mandatory grounds. The court postponed enforcement of the order for six weeks, the maximum permitted by section 89 of the Housing Act 1980. W applied to the local authority for assistance with finding accommodation. Leeds City Council accepted that it owed W a full housing duty. In the following two years it was unable, however, to find her suitable accommodation. The MOD then decided to enforce its possession order.

No proportionality review had ever taken place, the order having been made in 2009, before the Supreme Court’s decisions in Manchester City Council v Pinnock [2010] UKSC 45 and London Borough of Hounslow v Powell and others [2011] UKSC 8. When the MOD decided, on 8th February 2011, to enforce its possession order, W claimed for a judicial review. She obtained permission to do so on 19th April 2012.

W challenged MOD’s decision on 3 grounds: (1) it had failed to have regard to considerations of mandatory relevance, namely the absence of suitable alternative accommodation for W and her family, the consequences for them if evicted without suitable accommodation being available and the fact that she denied having failed to give the MOD access to the premises; (2) the MOD’s decision was a disproportionate interference with her Article 8 rights; and (3) the decision was Wednesbury unreasonable.

The Judge decided:

  1. There was no authority to support the proposition that the factors identified by W were of mandatory relevance. The “suggestion that the common law should be developed so that a public authority’s decision to seek the execution of a possession order can be subjected to a searching or intensive review would be inconsistent with Parliament’s intention as expressed in s.89 of the Housing Act 1980”: paragraphs 45 and 46 of the judgment.
  2. Article 8 is still engaged at the stage at which a possession order is enforced and there is nothing, therefore, to prevent a proportionality review taking place then. If such a review took place at the possession stage “it will be difficult for the tenant successfully to invoke it absent a marked change in circumstances or some other exceptional reason justifying its consideration. In the vast majority of cases where enforcement takes place (without any need for the service of a notice that a warrant has been applied for or issued) within days or weeks of the possession order, it is unlikely that such a justification will be capable of being established”: paragraphs 59-61 of the judgment.
  3. In the case before the Court, W had not had the benefit of any proportionality review, though Strasbourg (W having filed an application in the European Court of Human Rights on 10th January 2011) would not be able to prevent enforcement if it concluded that the order was disproportionate, its remedies being limited to a declaration or damages. The Judge undertook such a review and found, in the circumstances, that enforcement of the possession order was not disproportionate: paragraphs 62-3 and 65-82 of the judgment.
  4. The decision was not irrational in the Wednesbury sense: paragraph 83 of the judgment.

This is the first domestic authority on the application of Article 8 and public law arguments at eviction stage; and the first to confirm the ambit of Article 8 in possession proceedings since Pinnock established its application at the possession stage in 2011. As such, the judgment is important to those involved in social housing.

Let us know what you think

We have previously noted in our Social Housing Newsletter the increasing use of public law and Article 8 arguments in attempts to prevent eviction in mandatory possession cases, sometimes months or years after possession has been ordered.

This case emphasises the importance of enforcing possession orders swiftly in cases where there is no good reason to delay. It certainly helps to clarify:

  1. The on-going engagement of Article 8 at eviction stage 
  2. The high hurdle an occupier still has to overcome at the eviction stage in order to succeed in such a challenge 
  3. The role and influence of Strasbourg in individual cases.

Procedurally, it also appears to encourage the use of judicial review in the High Court, rather than an application in Form N244 in the county court. Whether the case results in an increase or decrease in the use of public law and Article 8 arguments at the eviction stage, or indeed in the use of judicial review as opposed to applications in the county court, only time will tell.

Much will turn, it is suspected, on (a) whether the court undertook a proportionality review at the possession hearing; (b) the amount of time that has passed between the making of the possession order and its subsequent enforcement and (c) the extent to which the occupier’s circumstances have changed in the interim.

The Team would be interested to hear your feedback and will keep you posted of further developments.