On the 18th May 2008 the European Court of Human Rights handed down a decision which many commentators in the social housing sector have earmarked as “far reaching”, “landmark” and “decade altering”.
In July 1998 the Applicant and his wife became joint secure tenants of a 3-bedroomed property owned by Birmingham City Council.
By the beginning of 2001 the wife left the property with her two children because of domestic violence. She obtained a molestation order and an ouster order against the Applicant allowing her to return to the property.
However, on the 14th April 2001 the Applicant used a crowbar to force entry into the property and allegedly assaulted his wife and her friend. Once again the wife was forced to leave the property. Criminal proceedings against the Applicant saw him acquitted of the allegations when no evidence was put forward.
On 18th April 2001, Mrs McCann made an application to be re-housed on grounds of domestic violence. On 8th August 2001 she returned the keys with an attached note giving up the tenancy. From that point on the Local Authority identified the property as uninhabited.
The Applicant returned to the Property in November 2001.
The relationship between the Applicant and his wife had improved by this time, and she agreed to support him in his application for a mutual exchange of accommodation with another local authority tenant.
The application was dated 4th January 2002 and completed at the Local Authority’s housing office. At the same time, a housing officer realised that the property was not empty, visited Mrs McCann and asked her to ‘close’ her tenancy by signing a notice to quit, which she did.
A week later Mrs McCann wrote to the Local Authority seeking to withdraw her Notice to Quit. Subsequently the County Court judge who heard the original claim for possession found that Mrs McCann had not been advised of the effects of her signing the notice to quit – particularly that it would remove the Applicant’s right to live in the property or exchange it for another.
The Applicant was also informed on 11th June 2002, by the Allocations Officer Review Panel, that in accordance with their domestic violence policy the Applicant would not be granted the right to accede to the former tenancy, nor would he be eligible for a dwelling allocated to a family, given his lack of dependants.
When possession proceedings finally begun in October 2002, the Applicant’s defence was based on the his right to respect for his home under Article 8 of the Convention, and therefore it was contrary to Article 8 to be evicted on the basis of a notice to quit. In the circumstances the judge held that the Local Authority had not acted within the requirements of Article 8(2), and dismissed the claim for possession. Birmingham City Council appealed to the Court of Appeal.
The Court of Appeal delayed their judgment pending the House of Lords decision in Qazi v. London Borough of Harrow, but finally decided that the notice to quit was effective, and therefore the tenancy had been ended.
The Applicant also applied for the judicial review of the Local Authority’s decision of 4th January 2002 to visit his wife and gain a notice to quit from her, and the decision to issue possession proceedings subsequently. The application was refused on 23rd September 2004.
On 22nd March 2005 the Applicant was evicted from the property.
The Applicant then lodged his case with the European Court of Human Rights.
In summary the ECHR decided:
The property continued to be the Applicant’s home within the meaning of Article 8(1) of the Convention, despite his wife’s common law notice to quit. Even though under UK domestic law a notice to quit extinguishes the joint tenancy, the Court agreed that it was “his home” as a question of fact.
The effect of the notice to quit and the issuing of the possession proceedings was to interfere with the Applicant’s right to respect for his home.
Although the interference was in accordance with the law, pursuing the legitimate aim of protecting the rights and freedoms of others to regain possession and apply the statutory scheme for housing provision properly, the question was whether this interference was proportionate to the aim pursued, and thus “necessary in a democratic society”.
In so finding this the Court said, “The loss of one’s home is a most extreme form of interference with the right to respect for the home. Any person at risk of an interference of this magnitude should in principle be able to have the proportionality of the measure determined by an independent tribunal in light of the relevant principles under Article 8 of the Convention, notwithstanding that, under domestic law, his right of occupation has come to an end” [paragraph 50].
If the Local Authority followed the statutory scheme to evict the Applicant, for instance Ground 2A – domestic violence, then it could well be reasonable to grant the possession order. However, the Local Authority chose to bypass the statutory scheme via their request to Mrs McCann to sign a notice to quit. The authority had, seemingly, not given any consideration to the Applicant’s right to respect for his home.
The Court also found that the procedural fairness requirements in Article 8 meant that the judicial review proceedings did not give a suitable opportunity to examine the proportionality of the interference. Therefore the decisions of Kay and Qazi are not consistent with Article 8 of the Convention.
The initial starting point of any analysis of the impact of McCann is to whom does it apply? In Kay v. Lambeth Borough Council the House of Lords constituted itself as a seven judge committee rather than the standard five, and subsequently they were unanimous in their decision to limit their consideration to cases where the landlord was a public authority.
Under the Human Rights Act 1998 section 6(3(b)) a “public authority includes any person certain of whose functions are functions of a public nature”, and, section 6(5) “in relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private”. Overall this is particularly non-specific and, unlike legislation including the Freedom of Information Act and the Race Relations Act, there is no list of “public authorities” attached. Given recent case law it must be said that Housing Associations and Registered Social Landlords are not public authorities, within the context of the Human Rights Act (although for some LSVT organisations this is still arguable). Although the Housing Corporation classes RSLs as public authorities for the purpose of VAT and EU/public procurement law, just to muddy the issue.
On this basis it is arguable whether there is a ‘landmark’ impact on the processes that RSLs and HAs follow to evict tenants. For example, if the McCann scenario replicated at an RSL, proportionality would not be required. The Human Rights Act does not place a duty on private landlords to behave proportionally.
Had the ECHR wanted their decision to go beyond the scope of Local Authorities with housing functions, to RSLs and HAs, they would have made it explicit in their judgment. After all, the fact that judicial review is not applicable to the decisions of private landlords or RSLs could have been mentioned by the ECHR had they been applying the principles of the judgment generally across the whole sector.
The only way that McCann could be extended beyond public authorities would be where the courts (as public bodies in their own right) take it upon themselves to consider proportionality as part of their deliberation on whether to grant a possession order. However, McCann focused on the proportionality of the Local Authority, not the courts. It will be interesting to see how the courts respond to this issue.
The ‘procedural defect’ in McCann, where the Local Authority by securing the signed notice to quit managed to sidestep the provisions of the Housing Act 1985, relates to the Local Authority’s proportionality. Once again it is arguable that this can not be transposed on to an RSL or a private landlord.
Public authorities now have a positive obligation to consider Article 8(2) of the Convention before issuing possession proceedings. There also exists the problem that where an arguable Article 8(2) defence is raised, the County Court is now obliged to consider it on its merits. But it is arguable (and hoped) that this is limited to possession cases issued by local authorities only.
The worst case scenario for private landlords or RSLs will be if at some later stage the UK legal system sees fit to include them in the “public body” bracket in direct opposition to the decision in YL v. Birmingham. The case of Susan Weaver v London & Quadrant Housing Trust will push this issue forward soon, as L&Q are fighting an application for judicial review – with the applicant questioning the lawfulness of the Ground 8 possession and seeking to have the housing association classed as a public body.
Doherty v. Birmingham City Council will be decided by the House of Lords soon, and that may well give the Lords the opportunity to clear any problems that the ECHR has created via McCann.
Honestly I don't really see the earth shaking impact that McCann is said to have made. There is quite a bit of case law in the pipe line and some of it will give some reassurance...wont it?