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Case No: 1CD0078
IN THE DERBY COUNTY COURT
The Derby Combined Court Centre
Morledge
Derby DE1 2XE
Date: 22 December 2011
Before:
Mr Recorder Tidbury
---------------------
Between:
CHESTERFIELD BOROUGH COUNCIL
Claimant
- and –
JANE MARY BAILEY
Defendant
---------------------
---------------------
Stephen Oliver, Chesterfield Borough Council for the Claimants
Phillip Barber (instructed by Chesterfield Law Centre, 44 Park Road,
Chesterfield S40 1XZ) for the Defendant
Hearing dates: 12th October 2011
---------------------
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be
taken of this Judgment and that copies of this version as handed down may be
treated as authentic.
1
.............................
Mr Recorder Tidbury
1. This is a claim by Chesterfield Borough Council, the claimants, against the
defendant Jane Bailey for possession of their property at 36, Hunloke
Avenue, Boythorpe, Chesterfield, S40 2NU. The property is a three
bedroomed house and was let to the defendant and her then husband, Robert
Bailey, as joint tenants.
2. The defendant has been a tenant of the claimants for a number of years. She
first took a tenancy from them in about August 1996, in respect of premises
at 75 Walton Drive Chesterfield. In about the beginning of 2002 (the tenancy
is dated 25th March 2002) the claimants moved her (With her consent, co-
operation and approval) to her present home, the premises in respect of
which the possession order is sought. The reason for the move was that the
council wished to carry out substantial refurbishment and modernisation of
the Walton Drive property, and this was much easier to do without a tenant
in occupation. As a side issue, it is apparent that the move was welcome
from the defendant’s perspective because she had problems with her
neighbours.
3. Prior to her move of house she had met and, on 22nd September 2001
married, Mr Robert Bailey. Also living with them were her two sons from a
2
previous marriage, Luke who was born on 10th January 1988 and was
therefore aged 14 and Thomas born 6/1/1991 aged 11. The tenancy of
Walton Drive was in her sole name, and had been granted to her following
the end of her previous marriage. Mr Bailey had never become a joint tenant
of that property, but, because he was living with her as part of the family
(and married to her) at the time of the move of properties, he was put on the
tenancy of Hunloke Avenue as a joint tenant. In written evidence the
defendant says that she was told that putting her husband on the tenancy was
the only way that she could move into alternative property, that she felt
pressurised at the time, and had she been given better options she would not
have agreed to losing her sole tenancy, bearing in mind her primary
responsibility was to her two sons. She says that she was not advised
properly of the consequences of accepting a joint tenancy. I am satisfied that
she would not have received any advice about this, and accept her evidence
on this point. I accept her evidence that she was told that she had to have her
husband on the new tenancy, but I have some reservations about the extent
to which she would have been concerned or would have disagreed to such a
proposal given that they were newly married at the time, and I do not in my
judgment rely on that part of her evidence.
4. Sadly the marriage broke down. The defendant and her husband separated in
August 2005 (by which time the defendant’s sons were aged 17 and 14
respectively). Mr Bailey moved out of the house. Suffice to say that the
defendant alleges domestic violence, and that proceedings were taken by the
police in the North East Derbyshire and Dales Magistrates Court for
harassment, and that on 4th November 2005 an order was made restraining
3
Mr Bailey from harassing her or causing her to fear that violence would be
used against her.
5. The defendant in her evidence says that over the years she has tried to get
her husband to remove his name from the tenancy but that he has refused to
do so. She has herself held back from instituting divorce proceedings either
on the basis of his behaviour or more recently on the basis of 5 years
separation because she has been fearful of the consequences should she do
so. She says that each year, around their wedding anniversary in September,
he has continued to torment and frighten her. Although she has no direct
evidence that the matters complained of are carried out by her husband she
feels it is too much of a coincidence to be anyone else. Clearly these matters
were not explored in evidence, being of only marginal relevance to the
issues in this case. She says that the service of the 2010 Notice to Quit was
carried out with the same motivation – out of spite and malice. I have no
reason to doubt her belief as to the way that he behaved each year on or
around their wedding anniversary. Clearly I can make no findings about
whether or not it was him, or some wholly unconnected person. Similarly I
cannot go so far as to find that the motivation for the surrender of tenancy
(by service of the Notice to Quit) was as she states. I have not heard him
give evidence, I have no reason to suppose that the consequences of his
action were explained to him by the Council, and on the explanation given
by him at the time (Rent Arrears Notepad 22) the timing on this occasion
was linked to a letter informing him of arrears of rent. Whatever his motive
– whether out of spite or whether to protect himself from rent arrears -
4
once having spoken to the council they told him what he should do, and
they, the council, made the running on the serving of the Notice to Quit.
6. At the date of ceasing to live in the property (2005) Mr Bailey did nothing
about the joint tenancy, simply leaving his wife to live in the property (and
to pay the rent). In September 2010 however he gave notice to quit to the
Claimants, and as one of two joint tenants was entitled thereby to terminate
the joint tenancy under which Jane Bailey was entitled to occupy the
premises. It is the defendant’s case that this was done with the motive of
causing her to lose her property.
7. There is no dispute that as a matter of law notice given by one of two joint
tenants is effective to terminate the legal joint tenancy. Both parties are
agreed that that is a matter of settled law (see Hammersmith & Fulham v
Monk [1992] 1 AC 478).
8. The defendant in her defence denies that the claimant has a right to
possession of the property. She accepts that she has been a tenant of the
property since 25th March 2002, and asserts (it is not disputed) that there are
no arrears of rent. It sets out that she played no part in the service of the
Notice to Quit by Mr Bailey, says that she has been the subject of domestic
violence by him, and has obtained court orders excluding him from the
property.
9. In her defence she takes 4 main points.
5
(1) She puts the claimant to proof of service of an effective Notice to
Quit by her co joint tenant.
(2) She puts the Landlord to proof that a joint tenancy was in fact created
in 2002.
(3) She relies on her article 8 rights under the European Convention on
Human Rights for respect for her home, and says that there should
be no interference by a public authority with the exercise of her
right except as is in accordance with the law and is necessary in a
democratic society in the interests of national security, public
safety or the economic wellbeing of the country, for the prevention
of disorder or crime, for the protection of health or morals, or for
the protection of rights and freedoms of others.
(4) She relies on her Article 6 rights and asserts that the claimant as a
public authority is prohibited from acting otherwise than in
accordance with the European Convention, and must act
proportionately. She says it would be disproportionate to evict her
when her continued occupation (the earlier part of which was as a
sole tenant) is considered, when the fact that she was not properly
advised about the consequences of accepting a joint tenancy, and
finally that she was in no way culpable for the determination of the
tenancy.
10. Before me the case for the claimant has been presented by Mr Oliver, a
solicitor employed in the Chesterfield Legal Services Department, and the
defendant has been represented by Counsel, Mr Barber. I received a helpful
statement of case for the claimant and a substantial skeleton argument from
the defendant. I am grateful to both for the helpful way that they put their
6
respective cases and dealt with the evidence. I heard brief oral evidence from
2 witnesses for the claimant and from the defendant herself. Following
closing submissions , as I had warned that I probably would, I reserved
Judgment. Following reservation of Judgment I have asked for further
written submissions on one further point, whether or not 28 days notice had
in fact been given in this case, and been provided with those.
11. When the case came on for hearing the focus had narrowed the issues
slightly. Both parties agreed that there were effectively two issues for me to
deal with.
(1) Was the Notice to Quit valid and effective to determine the tenancy
(and the points taken are whether it was properly served, and
whether it complied with the terms of the tenancy agreement as to
time of termination. Following reservation I asked for further
submissions on whether or not the contractually provided period of
notice had been given).
(2) If the tenancy has been determined has the defendant nonetheless got
a defence to the possession proceedings under Article 8 of the
ECHR. This involves an examination of law and fact.
12. If I determine issue one against the council then it is accepted (I think) that
they are unlikely to achieve a possession order against the defendant. She
will be able to obtain an order preventing Mr Bailey from serving another
Notice to Quit, and in Family Law Act proceedings will no doubt be in a
position to apply for a transfer of the tenancy, which it is thought the
claimants will be unable to resist.
7
13. This is not a case where there is a substantial evidential issue in the evidence
requiring a decision on whose evidence is preferred. It is a case where such
evidence as has been given before me has clarified or enlarged on
statements, and where all those giving evidence have, it seems to me, done
their best to assist the court with honest answers to the questions put to them.
14. The issues being essentially separate I intend to deal with them, and the
submissions made on each of them, sequentially.
THE NOTICE TO QUIT
15. The evidence is that on 3rd September 2010 Mr Bailey phoned to say that he
had received a standard letter from the Claimant regarding rent arrears. He
wanted to know what to do, because he had left the property 5 years
previously. He was advised to call into the claimant’s office- the name of
which was “on the move”, and to have his name taken off the joint tenancy.
Thus far the evidence comes from a file note extracted from the claimant’s
“rent arrears notepad” (1/22). On 6th September he went to “on the move”
and there saw the claimant’s Housing Solutions Assistant, Stephanie Austin.
Again there is no disagreement about her evidence. She does not remember
meeting Mr Bailey specifically (this was now a year ago) but she does see
her handwriting on the Notice to Quit, which she filled out, and on which
she wrote the word “McGrady”. That was the word written in her office on a
Notice to Quit to signify that it was notice from one of two joint tenants and
that it would be effective to terminate the tenancy.
8
16. She was asked questions about the time of day that the notice was filled in
and she replied that the time of day would not have been significant to her.
Given that it was done on a Monday 6th September she would have put in an
end date of Monday 4th October even had the form been filled in and signed
after 4pm. Following signing his Notice to Quit it would appear (though
she could not definitely say whether he went before or after seeing her) that
Mr Bailey went across the road to the rent office where he saw Elizabeth
Mellon who, asked by him if he would still be liable for the rent arrears,
informed him that his name would be taken off the tenancy with effect from
4th October 2010, but legally he would be equally liable up till that date for
half of the debt.
17. That is the evidence about the Notice to Quit. For the defendant there are
essentially two submissions. First, the Notice to Quit does not provide a time
for termination of the tenancy (specifically according to the tenancy terms 4
full weeks notice in writing to expire on a Monday at midday if you wish to
end your tenancy (2/62)). Secondly the notice is not (and there is no dispute
about this point) sent to the address provided for in the tenancy, “The Head
of Housing, Town Hall, Chesterfield, S40 1LP. For the claimants it was
submitted that the wording as to the address was “permissive” – Notice
“may be sent by post or delivered…” As to the first point, it was submitted
that the absence from the notice of the words “expiring at Midday (or 12
noon)” on the date of Termination cannot be fatal to the Notice. During the
evidence a further point was taken – that the full 4 weeks notice had not
been given. That point had not been taken in the skeleton argument, nor was
it pursued in final submissions, and indeed during the hearing Mr Barber
accepted the common law rule that a Notice to Quit given on a Monday
9
effective 4 weeks later is given in accordance with both the Protection from
Eviction Act and the common law. When preparing this judgment, and
mindful that the tenancy expired contractually at 12 noon on the Monday, I
asked for further submissions on the actual wording of this tenancy
agreement, and both parties produced submissions in writing and replied to
the respective submissions of the other party in very short time for which I
am grateful.
18. I have considered the submissions on the three points on the Notice to Quit
carefully. I have to be satisfied on the balance of probabilities that, in
accordance with the tenancy, “a minimum of four full weeks’ notice in
writing to expire on a Monday at midday” was given to determine this
tenancy.
19. So far as findings of fact are concerned, the factual basis set out above I
accept. On the basis of the date inserted on the Notice to Quit by Miss
Austin I accept that it was signed by Mr Bailey in front of her on that day. I
also accept, on the basis of the rent arrears notepad that it was produced to
Elizabeth Mutton at the rent office, and given to her and received by her on
that day. Why else would she have given the advice that he would be taken
off the tenancy on 4th October 2011. This was an important point and I am
satisfied that she had received (and therefore the council been served with),
the notice to quit when she gave that advice. I have considered whether there
is sufficient evidence on which to find the time at which the notice was
handed in. Given the reply to me from Miss Austin, that because the Notice
to Quit was completed on Monday 6th September she would have put the end
10
date as Monday 4th October even if the Notice had been completed at 4pm I
cannot on the balance of probabilities be satisfied that the notice was
completed before noon on that day. The burden on that issue (if relevant)
falls on the claimant and I cannot be so satisfied.
20. I have considered whether delivery of the Notice to Quit to the offices of the
council at an address other than the address in the tenancy invalidates the
notice. I am satisfied that it does not. The Tenancy Agreement states (46)
“If the tenant wishes to give notice to the Council, it MAY (my
accentuation) be sent by post or delivered to the Head of Housing, Town
Hall, Chesterfield S40 1LP. The word used is “May”. That wording of itself
should deal with the point. If the tenant uses the Town Hall address his
notice is beyond any possible criticism on that ground. If however he
chooses another reasonable (housing related) council address then provided
he can show that the address selected is a reasonable one in my view his
notice will be valid. In this case, where the council effectively told him how
to proceed with his notice, and he followed their instructions, the notice
cannot be said not to have been given to the correct office. The purpose of a
notice is to give notice to the Landlord of the termination of the tenancy. If
the Landlord elects to receive his notice at a place other than the Town Hall
(in one of his housing offices) that is a matter for him.
21. The second point raised is that the Notice is defective unless it states in
accordance with the tenancy the time at which the tenancy is to end. I have
considered the submission to that effect by Mr Barber, for which he was
unable to find any authority, and prefer the submission of Mr Oliver that the
11
absence is not fatal to the validity of the notice. The purpose of a Notice to
Quit is to inform the (in this case Landlord) that the tenant is quitting. For
reasons of law this notice never needed to be seen by the defendant in order
to be effective. The parties to it both knew and intended that the tenancy
would cease on Monday 4th October, and the specific terms of the tenancy
said that it was to determine at midday (on 4 full weeks notice). To say that
the notice was defective for failing to put in the words “at midday” cannot
be correct and accordingly I do not hold the notice invalid on that ground.
22. The final point on the Notice is that it was not served in time. I have already
said that I cannot find on the balance of probabilities that it was served
before 12 noon on the Monday, but that I am satisfied that it was served
during the day on Monday.
23. Claimant’s Submissions
For the Claimant Mr Oliver accepts that the tenancy agreement requires “a
minimum of 4 full weeks notice (which he says is 28 days) and the notice
must expire on Monday at midday. He then points to the notice and says that
it does not say a time – just “Date of Termination” – Monday 4 October
2010. He goes on to submit that a notice to quit of a periodic tenancy must
comply with any relevant statutory requirements and with common law
requirements, and he then sets out the relevant part of section 5 of the
Protection from Eviction Act 1977 which states:
….No notice by a landlord or a tenant to quit any premises….let as a
dwelling shall be valid unless –
12
(a) It is in writing….. ; and
(b) It is given not less than four weeks before the date on which it is to
take effect”
The requirement for a minimum of 4 weeks notice does not, he submits,
mean “28 clear days”, and relies on Schnabel v Allard [1966] 3 All ER 816
(CA). A notice which is served on Monday 6th September 2010 complies
with section 5 of the Protection of eviction Act 1977 if it expires 4 weeks
later on Monday 4th October 2010. In strict law the tenant is entitled to stay
until midnight of the day on which the notice expires – and for this
proposition relies on Bathavon District Council v Carlile [1958] 1 All ER
801 CA.
24. He then considers the position at common law, and submits that a Notice to
Quit must comply with the common law requirements relating to validity.
Where there are express terms as to the notice to be given by either party to
determine the tenancy, notice in accordance with those terms must be given
save that no express provision in the tenancy agreement can override section
5 of the Protection from Eviction Act 1977. So, a notice cannot be given for
less than 4 weeks before the date on which it is to take effect. On this basis
he submits that if the notice had said “Termination – Monday 4 October
2010 at midday” then arguably the notice would have been bad because it
would have fallen 12 hours short of the required notice period. His
submission continued that a notice to quit a weekly tenancy may expire
either on the same day as the date on which the tenancy commenced or on
the date on which the rent is paid or the day before, that in this case the
tenancy agreement provides that the rent is payable every Monday, and
accordingly the notice expired on the correct day. His submission concluded
that because the express terms of the tenancy agreement were subject to
section 5 of the Protection from Eviction Act 1977 and the notice in question
was valid because it was given on Monday and expired 4 weeks later on
Monday (4th October).
13
25. Defendant’s Submissions
For the defendant Mr Barber accepted that at common law a notice to quit
effective on a Monday does not count the day on which it was given but
does count the day on which it is to take effect. That is however on the basis
that the day on which it takes effect runs until midnight and the notice takes
effect at that time. He submits however that the tenancy in this case
stipulates that the notice is to take effect on the Monday on which it is to
take effect at midday. The notice must be of four weeks duration. Therefore
in this case a notice given on a Monday exactly 4 weeks before the date on
which it is to take effect is not four clear weeks – but is in fact 3 weeks and
6½ days. The day on which the notice is given does not count, and the notice
must end or be taken to have ended, at 12 midday on the Monday which will
therefore not be 28 days.
In support of his submission he relies on Weston v Fidler 88 LT 769,
Newman v Slade [1926] 2 KB 328 and Portmadoc v Antoninzzi [1973] EGD
318.
26. In the light of the submissions I gave both the parties the chance to reply to
the other’s submission.
27. For the claimant Mr Oliver re-iterated that the point he wanted to make was
that the notice did not stipulate that it was to expire at midday on 4th
October, and that had it done so it was arguable that it would have been too
short, but there was no reference to midday. The express term in the contract
has to be read subject to s5 of the Protection from Eviction Act 1977 in a
case such as this where the notice is given by a tenant on a Monday and
expires 4 weeks later without specifying the actual time of day.
28. For the defendant Mr Barber submitted that there was no inconsistency
between the Schnabel case and the Portmadoc line of authorities. They
address different issues and are both good law. He accepted that at common
law (and noted that this was consistent with the Protection from Eviction Act
1977) a notice to quit a weekly periodic tenancy can expire at midnight on
14
the day before or on the day of a period of the tenancy. That is to say, a
Friday to Friday weekly tenancy notice can be served on the Friday to expire
the following Friday four weeks hence at midnight or on the Thursday to
expire at midnight on the following Thursday four weeks hence. In both
those situations, that gives four full weeks and this was the point in
Schnabel. That, he submits, is the point made by Lord Denning in that case
where he states that the general rule is that at common law you don’t count
either the day on which the notice is sent or the day on which it is given.
However, the difference between that case and this is the contractual
provision for the time of day to end the tenancy. In this case the contractual
provision is for a minimum of four weeks notice in writing to expire on a
Monday at midday; therefore he submits the common law rules on the notice
period do not apply as the contract provides for the day upon which and time
at which the notice must expire. He then reiterates his previous submission
submitting that to be good, notice to expire at noon on the Monday would
have to been given on the Sunday 4 weeks before at latest.
My Decision:
29. Notices to Quit are a technical area of the law. Schnabel v Allard overruled a
decision of the Divisional Court in Thompson v Stimpson [1961] 1 QB 195
where the Divisional Court had held that “not less than four weeks”
excluded both the day of giving and receiving the notice. Lord Denning in
the Court of Appeal said that that was incorrect, and that the rule in Landlord
and Tenant cases is that you exclude only one and not both of the days. A
Notice to Quit (requiring seven days notice) given on one Saturday is good
for the next Saturday, and a notice requiring a period “not less than four
weeks” is satisfied by being given on one day to expire that day four weeks.
Danckwerts and Diplock LJJs delivered judgments in agreement with Lord
Denning. The Judgment of Diplock LJ however explains the point with great
clarity at p818 I.
15
“We must approach this appeal on the basis that the notice to quit on
Friday April 1 was received by the tenant on Friday March 4……The
tenancy was a Saturday to Saturday tenancy, as the rent book shows.
Crate v Miller [1947] K.B. 946, a decision of this court, shows that at
common law a periodic Saturday to Saturday tenancy expires on
Friday at midnight. So far as the date of expiration of the tenancy and
the length of the notice at common law is concerned the notice served
was valid” .
30. Bathavon Rural District Council v Carlile deals with the requirement of the
Notice to Quit to expire at the proper time. As Hodson LJ (reading the
Judgment of the Court sitting with Pearce LJ and Upjohn J) said in that case
at p802F:
“The defendant was a weekly tenant, and there is no question between
the parties but that the weekly tenancy runs from Monday until
Sunday night; ie the midnight between Sunday and the Monday
following that Sunday.”
And at 804B:
“The second question is highly techhincal and depends on the validity
of a notice to quit dated June 4th 1957 which is in the following
terms:
“Notice to quit to ……. I hereby give you notice to quit and
deliver up the premises known as ….. by noon on Monday 1
July 1957. Dated this June 4 1957”,,
a Friday, signed by the clerk of the council. If the notice was good,
and not otherwise, the council are entitled to mesne profits as claimed
from July 1st 1957 to the date of the hearing.
It was contended by the council that, on a true construction of
the notice, it being agreed that the tenancy ended on Sunday night and
not on the Monday following, the notice expired at the same time as
16
the tenancy notwithstanding the words “by noon on Monday, July 1
1957”. A. L. Smith,LJ said in Sidebotham v Holland [1895] 1 QB
378 at 388:
“it cannot be denied that the law upon notices to quit is highly
technical; but the technicalities are too deep rooted in our law to
be now got rid of…”
This question depends on such a technicality which can only be
justified because a notice to quit is a unilateral act determining a
tenancy without the consent of the opposite party and as such must be
strictly construed. The rule of law is that a notice to quit is bad which
does not expire at the proper time……….. it is scarcely necessary to
point out that the trap laid by this technicality is commonly avoided
by the addition of words to the effect that if the date mentioned is not
the real date on which the period expires, then the notice to quit is to
expire on the proper day of expiry next after the expiration of the
current period.”
And at 804 G – 805:
“The next matter to consider is whether a notice expressed to end on
the day following the expiration of the period can be good. The
answer is “Yes” and is to be found in Sidebotham v Holland and a
later decision of the Court of Appeal in Crate v Miller [1947] 2 All
ER 45. In the former case, which concerned a yearly tenancy, Lindley
LJ delivered a judgment in which Lord Halsbury concurred, AL Smith
LJ doubting but not dissenting. The tenancy there began on May 19
and a notice to quit on May 19 was held to be good, that being the
anniversary of the commencement of the term. There is a passage in
the judgment of Lindley, L.J., which contains this language ([1895] 1
QB at p.383):
“The validity of a notice to quit ought not to turn on the
splitting of a straw. Moreover, if hypercriticisms are to be
indulged in, a notice to quit at the first moment of the
anniversary ought to be just as good as a notice to quit on the
last moment of the day before. But such subtleties ought to be
and are disregarded as out of place.”
17
This passage supports the contention that the notice in this case is not
rendered bad by expiring on Monday, for as Lindley LJ, pointed out, a
notice to quit on the first moment of the anniversary ought to be just
as good as a notice to quit on the last moment of the day before,
although he continued by saying that such subtleties should be and
were disregarded as out of place, no doubt on the principle of de
minimis non curat lex. However, since the decision of this court in
Crate v Miller, also the case of a weekly tenancy, it seems clear that
the true explanation of this principle is, not de minimis non curat lex,
but that the court construes a notice given for the anniversary as a
notice expiring at the first moment of the anniversary. Somervell L.J.
there delivered the judgment of the court and applied the decision of
Sidebotham v Holland to a weekly tenancy, holding that a weekly
tenancy which begins on Saturday and ends on Friday may be
determined validly by the landlord giving either a notice to quit on
Friday or a notice to quit on Saturday, for in either case the notice is
properly construed as a notice to quit when the current week ends, for
a notice to quit on the last day of the current period and a notice to
quit on the day after that day are both equally intimations that the last
day of the current period is the last day of the tenancy.
The council argued on these authorities that, if notice expiring
on Monday was good, it could not be rendered bad by the addition of
the words “by noon”. The answer is that, while “Monday” without
more can be construed (as the authorities show) as meaning the first
moment of the day (the preceding midnight) “by noon on Monday”
cannot be so construed, The council seek to escape from this
conclusion by reading the notice as if it expired at midnight and
contained a licence to continue in occupation until noon of the
following day….. the words will not, however, bear this construction
for the words “by noon on Monday” are expressed to mark the
expiration of the notice itself and there is no room for a licence to
remain on the premises after the expiration of the tenancy.”
18
31. In Portmadoc Urban District Council v Antoninzzi and others [1973] EEGD
318, a decision of the divisional court of Lord Widgery C.J., Ashworth and
Bridge, JJ the tenants were tenants of the local authority under monthly
tenancies, with provisions for termination by either party giving the other 28
days notice in writing, such notice to expire on a Saturday and the keys to be
delivered to the council before 12 noon on that day. The council served
notices to quit on the tenants. The notices were dated June 16 th 1972, a
Friday, and were sent by registered post. They were delivered the following
day, a Saturday. The notices were to take effect 4 weeks from that date on
Saturday July 15. The question on appeal to the Divisional Court from the
Justices was whether the notices were effective to terminate the tenancies on
the Saturday in question. The argument for the tenants was that the
requirement to surrender the keys by 12 noon meant that termination of the
agreement took effect at 12 noon. Because of that requirement there had not
been a clear 28 days notice given by the council. “The tenants relied on
Weston v Fidler (1903) 67 J.P. 208. That was a case in which certain
premises were let on a weekly tenancy. By terms of the agreement the
tenancy could be determined by a week’s notice and the keys being
delivered up before noon on a Saturday. In that case it had been held that
notice to quit given before noon on a Monday was not sufficient notice. It
was impossible to distinguish that case from the present one. The
requirement to deliver up the keys was in unambiguous terms. It was a
technical point, but the whole subject of notices to quit was riddled with
technicalities, and it would make confusion worse confounded if the present
case were distinguished from Weston v Fidler. In such circumstances the
notices to quit were ineffective and the justices therefore had no jurisdiction
to make the order. The appeals were allowed and the orders set aside.”
19
32. Reading that report it is clear that there is an error in quotation from Weston
v Fidler. The quotation above suggests that the tenancy was to be terminated
with a notice taking effect on a Saturday and the notice being given the
previous Monday. It is clear that on any view 7 days notice could not have
been given from Monday to Saturday. In fact, the account of Weston v Fidler
given in the report of Newman v Slade [1926] KB 328, where the full terms
of the tenancy in Weston were set out at p329, shows, the reference to a
Monday must be an error. The account in Newman is as follows: “there
where it was agreed that the tenancy might be determined by the giving of
one week’s notice by either party, a notice given on November 17 to expire
on November 24 was held bad”. That account could not refer to a notice
given on a Monday for the following Saturday and must refer to a notice
given on the previous Saturday for the following Saturday. Because it had to
end at midday it did not give the requisite 7 days notice.
33. Newman v Slade makes clear that if the notice takes effect at midday on the
day of the week following the day on which notice was given this will not be
the requisite 7 days notice, the whole of the final day until midnight being
required for that purpose.
34. It follows that where notice is given the common law rule is that the day on
which the notice is received (is served) is ignored, and that the day on which
the notice takes effect is counted “provided that the time available is to
midnight on that day”. In this case the time provided could extend, in
accordance with the tenancy, only until midday. The argument that the
20
notice must be taken to extend to midnight on that day cannot be correct –
see Bathavon above, where this point is covered. A Notice to Quit has to
take effect on the anniversary of the end of the tenancy (in this case a
Monday at midday) and cannot take effect at a later point in time (Midnight
on Monday). Mr Oliver submits that the notice must be read subject to s5 of
the Protection of Eviction Act. I do not agree with him, save in so far as that
Act provides for the minimum period of notice that can be given. Where, as
in this case, there is a more onerous contractual term, that is the term which
is relevant. I prefer the submission of Mr Barber, to the effect that the notice
in this case actually given is 3 weeks 6½ days. While it may be going too far
to say Mr Oliver agrees with this, he does go a long way towards making
such a concession in his written submission on this point at paragraph 7
where he says “It is submitted that if the notice in question had stated
“Termination- Monday 4 October 2010 at midday” then arguably the notice
would have been bad because it would have fell (sic) 12 hours short of the
required notice period. He repeats this in his final written submission where
he says “The notice itself did not stipulate that it was to expire at midday on
Monday 4th October. Had it done so, then it is arguable that the notice period
would have been too short but there is no reference in the notice to midday”.
I do not agree with his submission where it continues on “the express term
which refers to midday has to be read subject to section 5 of the Protection
from Eviction Act 1977 in a case such as this where the notice is given by a
tenant on a Monday and expires 4 weeks later on a Monday without the
notice specifying the actual time of day”.
35. I conclude that in this case in order to be a good notice there had to be four
full weeks notice expiring on Monday at midday. In this case there were not,
21
and only 3 weeks 6½ days notice were given. That is not just a breach of the
tenancy it is also a breach of the statute and the notice cannot be good.
36. That is enough to dispose of this claim to possession. In case however that I
am wrong about that I must go on to consider the other question in the case.
The remainder of this Judgment is written therefore on the basis that I am
wrong about the Notice to Quit, and on the basis that the notice to quit was
sufficient to terminate the contractual tenancy.
37. IS THERE A DEFENCE UNDER ARTICLE 8
If the tenancy has been determined has the defendant nonetheless got a
defence to the possession proceedings under Article 8 of the ECHR.
37. The tenancy has been brought to an end by the Notice to Quit. There is no
way open to the Defendant in these circumstances to defend the action for
possession other than by the HRA route. It is right that before I deal with
this part of the case, and the law, that I set out the broad positions adopted
by each party. I will only deal with the law in very general terms where there
is no issue between the parties.
For the defendant it is submitted:
(1) That the actions taken constitute an interference with the defendant’s
home.
(2) That there has been an interference with her right to respect for her home.
(3) That such interference albeit in accordance with the law does not pursue
a legitimate aim
(4) That such interference is not necessary in a democratic society.
22
For the claimants their position is:
(1) They accept that the case concerns the defendant’s home and constitutes
an interference with her right to respect for her home.
(2) They do not accept that that interference is not in accordance with the law
and assert that it does pursue a legitimate aim.
(3) They submit that the steps taken are proportionate.
38. The issues before me are therefore:
(a) Is the interference which would be caused by making a possession order
in this case in pursuit of a legitimate aim, and
(b) are the steps taken proportionate and necessary in a democratic society.
THE LAW
39. I have been referred to the considerable history of the development of the
law in this area. I have been assisted by Mr Barber’s very helpful skeleton
and submissions on the development of the law, and the current state of the
law. I do not think that there is really any dispute about the law, which
following the ECHR decision in McCann v United Kingdom (App no
19009/04) [2008] ECHR 19009/04 and the two following decisions of the
Supreme Court Manchester City Council v Pinnock [2010] UKSC 45 and
Mayor and Burgesses of Hounslow v Powell [2011] UKSC 8; is now settled.
(1) Any person at risk of being dispossessed of his home at the suit of a local
authority should in principle have the right to raise the question of the
proportionality of the measure, and to have it determined by an
23
independent tribunal in the light of article 8, even if his right of
occupation under domestic law has come to an end.
(2) A judicial procedure which is limited to addressing the proportionality of
the measure through the medium of traditional judicial review (ie one
which does not permit the court to make its own assessment of the facts
in an appropriate case) is inadequate as it is not appropriate for resolving
sensitive factual issues.
(3) Where the measure includes proceedings involving more than one stage,
it is the proceedings as a whole which must be considered in order to see
if article 8 has been complied with.
(4) If the court concludes that it would be disproportionate to evict a person
from his home notwithstanding that he has no domestic right to remain
there, it would be unlawful to evict him so long as the conclusion
obtains- for example, for a specified period, or until a specified event
occurs, or a particular condition is satisfied.
(5) Although it cannot be described as a point of principle, it seems that the
EurCtHR has also franked the view that it will only be in exceptional
cases that article 8 proportionality would even arguably give a right to
continued possession where the Applicant has no right under domestic
law to remain.
The above propositions are direct quotes from the Judgment of Lord
Neuberger in Pinnock at para 45.
(6) Where a court is asked to make an order for possession of a person’s
home at the suit of a local authority, the court must have the power to
24
assess the proportionality of making the order, and, in making the
assessment, to resolve any relevant dispute of fact. (Pinnock para 49)
(7) It seems both unsafe and unhelpful to invoke exceptionality as a guide. It
is unhelpful because, as Lady Hale pointed out in argument,
exceptionality is an outcome and not a guide. It is unsafe because, as
Lord Walker observed in Doherty v Birmingham [2009] 1 AC 367, para
122, there may be more cases than the EurCtHR or Lord Bingham
supposed where art 8 could reasonably be invoked by a residential
tenant……. The question is always whether the eviction is a
proportionate means of achieving a legitimate aim. Where a person has
no right in domestic law to remain in occupation of his home the
proportionality of making an order for possession at the suit of the local
authority will be supported not merely by the fact that it would serve to
vindicate the authority’s ownership rights. It will also, at least normally,
be supported by the fact that it would enable the authority to comply with
its duties in relation to the distribution and management of its housing
stock, including, for example, the fair allocation of its housing, the
redevelopment of the site, the refurbishing of sub-standard
accommodation, the need to move people who are in accommodation that
now exceeds their needs, and the need to move vulnerable people into
sheltered or warden assisted housing (Pinnock para 52/53)
(8) Unencumbered property rights, even where they are enjoyed by a public
body such as a local authority, are of real weight when it comes to
proportionality. So too is the right - indeed the obligation – of a local
authority to decide who should occupy its residential property. …..
Therefore in virtually every case where a residential occupier has no
contractual or statutory protection, and the local authority is entitled to
25
possession as a matter of domestic law, there will be a very strong case
for saying that making an order for possession would be proportionate.
However, in some cases there may be factors which would tell the other
way.(Pinnock para 54).
(9) If domestic law justifies an outright order for possession, the effect of art
8 may, albeit in exceptional cases, justify (in ascending order of effect)
granting an extended period for possession, suspending the order for
possession on the happening of an event, or even refusing an order
altogether. (Pinnock para 62).
40. Once again the evidence before me was not really in dispute and the version
that I set out represents my findings on the evidence. From the claimant I
heard from Mrs Fox the Housing Solutions Manager for the council. The
above authorities make clear it is not for the claimant to set out their case on
need for their housing and for its re-allocation to families. I was however
given (and rightly given) some background. The claimants wrote to the
defendant on 27th September 2010 informing her that the joint tenancy
would end on 4th October 2010 by reason of the notice given by Mr Bailey.
Clearly there had been some communication prior to that letter because it
states that the council understand that she wishes to continue as sole tenant
of the property, and that an appointment has been made to see her on 4th
October 2010. That letter (132) was written by Mrs Redfern, the person,
acting alongside and in consultation with Mrs Fox’s assistant manager, who
made the initial decisions in this case, and who conducted the meeting on 4th
October. At the meeting on 4th October the defendant was informed that she
was likely to lose her home and therefore she wrote the letter at (135) setting
out her particular reasons for wishing to remain in that property. That letter
26
sets out that she has spent money and time on the property, that she and her
son are only just recovering from the actions of her husband from the time
when they separated (which from her own account and from newspaper
reports she put before me included the threat of arson), and that her
neighbours have been supportive and are aware of the risks from her ex
husband, and protective about him. She sets out her concerns that if she
moves the neighbours at any new property will not know him and will
therefore not be in a position to phone the police if he loiters in the area as
the present neighbours have done. She attached the report of the magistrates
proceedings for harassment (139) and also a copy of the order they made
(136). Questions were asked about that letter and whether or not it had been
replied to. Mrs Fox could not point to a written reply and says that it would
have been her assistant manager Sarah Bowskill who would have dealt with
it. The letter follows the meeting on 4th with Wendy Redfern and on balance
of probabilities predates the decision letter of 19th October 2010 when the
council inform the defendant that she will not be allowed to remain in her
home and request that she fill in an application form if she wishes to bid for
alternative accommodation.
At around the same time as these letters (presumably after receiving
notification of the decision on 19th October) the defendant had a telephone
discussion with a member of the housing team (DM Watton) when she again
expressed her unhappiness about not being eligible to stay in her home
(134). That same file note also records a telephone conversation with her son
who was likewise very unhappy about the situation.
The final letter in the tenancy file is an exchange between Toby Perkins MP
and the council dated 25 November 2010, and acknowledged and then
substantively replied to on 22nd December 2010.
27
41. In her oral evidence Mrs Fox was asked about the house in question. She
described the property as a large three bedded house with parlour, so it had
two reception rooms and a kitchen. It is on a major thoroughfare not a cul de
sac (though my understanding is that it is set back on an access road beside
the major road) and is opposite the local primary and secondary schools.
There is a considerable demand for such houses and there are currently 571
households on the waiting list for such a property.
42. The first question addressed in oral evidence concerned the policy on
permitting an ex tenant to remain in their property. Since 2009 there has
been a policy not to remove any ex-tenant (regardless of the extent of their
overhousing) who has been living in the property in question for more than
15 years. The policy was not in place at the time of the move in 2002 and so
was not something of which the defendant should have been warned. Before
the policy change the council always applied the McGrady rule (notice given
by one of two joint tenants determined the tenancy and then the council
could make a new decision on whether or not to rehouse the other joint
tenant) and dealt with the rehousing question on the basis of their allocation
policy.
43. Asked about the criteria which would have been considered in this case Mrs
Fox said that they would have looked at whether the property was too large
for the defendant and her needs, and also whether she was eligible (in
allocation terms) for that property. Obviously they would have considered
her extenuating circumstances but here they did not feel they were
28
determinative in her favour. They would only have allowed her to stay if
there were exceptional circumstances – such as having 2 adult children with
learning difficulties.
In this case in reaching her decision (and she accepted that although the
decision not to offer a further tenancy of this property was concerned was a
decision taken in her department, the decision to commence possession
proceedings was hers alone) she said had considered all the evidence and
decisions made in her absence and she accepted that at any point in time she
could have decided not to proceed or continue the proceedings. As she told
me she had the power to determine if there were exceptional circumstances.
She came back from maternity leave 2 weeks before Christmas 2010 at that
stage working 4 days a week and started working again full time from 1 st
January 2011. She was asked whether she was aware than in McGrady it
was usually the case that the female partner and children left often because
of violence of the male involved, and the notice to quit was encouraged by
the local authority (in those cases from the female) in order to get the
property back for her and the children. She said she was aware of the
principle of the case but not the facts. She said that in the case being dealt
with she had applied the principle and then the particular circumstances of
the case. She had looked at the current problems as reported and looked at
the safeguards and social care involved and applied the principles. Asked
about the fact that it was Mr Bailey who had served the notice to quit she
said it was her understanding that at that point there were rent arrears of
£400 and that he would have been advised to bring the tenancy to an end.
She had no reason to consider there was any issue and she applied the
council’s policy.
29
44. The defendant gave evidence before me and told me that she worked for the
Ridal House Nursing Home. Her work was about 20 – 25 minutes walk from
her current home, and she tended to walk or sometimes if raining to get a
taxi. The home she is living in has been her home since 2002, she has two
sons, the youngest lives at home and the elder moves out when he can afford
to (and has done so on 4 occasions, each time returning home). She wants to
be able to keep a bedroom for each of them.
45. It was put to her that she did not need a three bedroomed house and that she
could easily manage in a 2 bedroomed flat. She said that she did not want to
live in a 2 bedroomed flat and that if she was ordered to leave rather than do
this she would rent a house privately. She was asked if in fact there was
alternative accommodation which she had been shown in the area of her
work and she said that she had only seen 2 bedded flats and that she would
not live in a flat, that it would not be a home for her. She was then asked
specifically about 7 Chepstow place, a 2 bedded flat in the area to which she
replied that she knew no-one living in that area. She accepted that it was a
walkable distance but said she knew no-one living within 5 minutes of the
property and that she did not personally know anyone living around that
area.
It was suggested that with only Thomas living full time at home a 2 bed flat
would be adequate for her even when Luke occasionally returned home but
she said it would not really be adequate. It was suggested she would be more
secure from Mr Bailey than where she was because he would not know
where she was and she said this was not the case, he knew people who knew
her, that he would follow her and text her to say that he knew where she was
living.
30
THE PARTIES CASES
The Defendant
46. For the defendant in addition to his skeleton argument Mr Barber submitted
that this was the only area of possession proceedings in social housing where
the court does not have to look at the tenant’s circumstances with the
exception of the law of trespassers. In the law relating to occupation of
property as a home it is the only area with an unencumbered right to evict.
Where there is a secure tenancy the council would have to give notice, have
the correct grounds and then succeed on the basis of reasonableness. This is
a case which allows the local authority an opportunity to go outside the
statutory scheme.
47. This case is brought on the basis of gateway (b) in Leeds v Price [2006]
UKHL 10 per Lord Hope at paragraph 110. The decision in that case has to
be looked at in the light of McCann v UK and specifically paragraphs 49 -53
of that case. Judicial review is not a proper forum (paragraph 53) and there
must be a proper factual hearing.
48. Mr Barber then examined Pinnock and made clear that that case concerned
a “demoted” tenancy. In that case someone who had previously been a
secure tenant had breached the terms of his secure tenancy. Once a demoted
tenancy was established (by court order following a hearing) then if the
council wanted to seek possession it could only do so if it established that it
had followed the correct procedure and obtained a court order for
possession. The Court, under s143(D) (2) of the Housing Act 1996 “must
make an order for possession unless it thinks that the procedure under s143E
and 143F has not been followed”. The essential question in Pinnock was
31
whether or not Judge Holman in the County Court had complied with the
article 8 rights of the tenant by only allowing him to question the procedure
followed by the local authority by way of quasi judicial review in the County
Court (as HHJ Holman decided) or as Stanley Burnton LJ (with whom the
Mummery and Lloyd LJJ agreed) that the review of the County Court was
even more limited – simply to see whether the procedure was correctly
followed, if not – the court must not make an order for possession. If
however the correct procedure has been followed the court must make an
order for possession. In the event the Supreme Court albeit upholding the
orders below did so for different reasons, and held that a tenant was entitled
to an opportunity to have the proportionality of the measure determined by a
court, and, if necessary for that purpose, of having any relevant issue of fact
resolved.
49. Albeit he had to concede that the tenant in Pinnock and in effect the tenants
in Hounslow v Powell were none of them ultimately successful in their
appeals in retaining their homes by reliance on article 8, Mr Barber says that
they are very different cases to the case before me (in Leeds v Hall the local
authority had conceded a regular tenancy but had it not done so his appeal
would have been dismissed (Paragraph 68); in Hounslow v Powell had the
offer of suitable alternative accommodation not been made the court might
have found grounds for remitting to the county court to consider the question
of article 8 proportionality (Paragraph 66); and in Birmingham v Frisby the
council had made no offer and the court dismissed his appeal (Paragraph
70)).
32
50. Above all he submits that there is a difference where a notice to quit
involves the loss of right to remain without a judicial process. In this case he
submits:
(1) Mrs Bailey is not at fault.
(2) She has been the subject of not statutory procedure to deal with her
occupation.
(3) There have been no previous proceedings.
(4) She is a former secure tenant who has lost her secure status.
(5) The application of the Local Authority allocation policy is irrational.
(a) Why a 15 year cut off rather than any other period.
(b) Why no provision for a secure tenant in excess of 15 years
where the only reason she had not got 15 years continuous in
the one property was that she had moved to assist the council in
their refurbishment.
(c) She was told by the council that she had to take a joint tenancy
with her husband.
The rules that are applied in this case are irrational AND
unreasonable.
51. He asked me to read and apply paragraph 32 of his skeleton argument.
Without I hope doing it injustice I paraphrase his more elegantly expressed
submissions in that paragraph as:
(a) Hammersmith v Monk can no longer survive the full effect of an article 8
challenge by a public sector joint tenant. While it may be proportionate to
grant possession of introductory, demoted and homelessness regime
tenancies it will no longer except in exceptional circumstances be
proportionate to allow possession where there is no fault on occupier’s
part. Accordingly the converse of the ratio in Pinnock should apply.
(b) Harrow London Borough v Quazi [2003]UKHL 43 was departed from in
Pinnock but Pinnock does not provide general guidance in relation to this
33
type case, it deal only with demoted tenancies. Powell does not mention
Quazi or the position of joint tentants.
(c) In this case Mrs Bailey was a secure tenant whose position was
determined not by an order of the court following review, but by a violent
ex partner and with no fault on her part.
(d) Although put as being a decision on effective housing management this is
not such a case. The case is based purely on a rule of law outside the
traditional principles of social housing.
(e) The decision not to renew and the housing policy applied are irrational in
the judicial review sense. The decision to evict is neither reasonable nor
proportionate.
(f) The circumstances in which Mr Bailey gave notice are murky, and in
procuring the service of the notice to quit and taking possession
proceedings the Claimant is complicit in his actions.
(g) The circumstances in which Mrs Bailey agreed to a joint tenancy are also
questionable.
52. Finally he submits that in fault cases it is entirely understandable that the
courts have come to the decisions that they have. This case is however
different and should be looked at from the other way around. He summed up
by submitting that in this case, although I clearly could consider others on
the waiting list, in the circumstances where one tenant of two joint tenants
has terminated the contractual rights of the other without notice it had to be
an exceptional case for me to evict the defendant, rather than the other way
around.
53. For the Claimant in closing it was submitted as follows:
34
The two issues to be determined are first is a possession order in accordance
with the law and second is it proportionate.
It was submitted that Quazi at para 69 was authority that the article 8(1)
right to “respect for his home” did not involve a guarantee to a home but just
guaranteed the right to respect for the home in which the person is living.
That right is qualified by art8(2) “no interference save as is in accordance
with the law and is necessary in a democratic society in the interests of
national security, public safety or the economic well-being of the country. …
He submitted in this case that it was necessary for the economic wellbeing of
the country and the efficient management of housing stock.
54. Mr Oliver examined McCann which he described as being on all 4’s with
this case although he conceded in that case that the husband had been
domestically violent and threatening to the wife.
This present case was he said the first case that he was aware of to be argued
on the point, and he submitted that it was not exceptional.
He pointed me to paragraph 52 of Pinnock where the Lord Neuberger said
that he preferred to look at the question of exceptionality in a rather different
way “whether it was a proportionate means of achieving a legitimate aim”,
and where he pointed out that the factors which will usually support an order
for possession. He then referred me to paragraphs 60 – 64 and the general
points made by Lord Neuberger.
He turned to time for possession and said that whilst generally a 14 day
order had to be made it could be postponed for 6 weeks.
In this case he submitted it was highly relevant on the question of
proportionality that the local authority was prepared to secure alternative
accommodation for the defendant in the event that she had to move.
35
He reminded me that the threshold for raising an arguable case on
proportionality is high (para 35 of the Judgment in Powell), and he pointed
to para 111 where in the judgment of Lord Phillips it was said that it is not
easy to envisage any issue of fact that the Defendant could raise that would
constitute a substantial ground for making a proportionality challenge where
the local authority simply wishes to relocate in the interests of more efficient
allocation of limited and fluctuating housing stock.
Finally, in reply to the submission that the 15 year period in the allocation
policy was irrational and unreasonable he said that it was a perfectly
reasonable policy which recognised that where a person was well established
they would normally be granted a new tenancy. This, he submitted, is not
that case.
MY DECISION:
55. I have considered both submissions and the authorities cited to me. This is a
case where the tenant has (as Mr Barber points out) had a secure tenancy
which she could only lose on one of the grounds in schedule 2 of the
Housing Act 1985. Had she received advice she could have made an
application for a transfer of tenancy under s53 and schedule 7 to the Family
Law Act 1996, which would have been almost certain (and certain by the
time of the Notice to Quit in this case) to succeed. In this case the serving of
notice by one joint tenant terminated the contractual tenancy and allowed the
claimants to claim possession. They could not have done so otherwise under
any of the grounds in schedule 2 of the HA 1985. The serving of notice to
quit was an act over which the defendant had no control. Once it had been
carried out her rights to her home were limited to those she could assert
36
under the Convention. I am satisfied that the local authority encouraged,
once he had appeared at their door, Mr Bailey to go through the procedure of
serving a notice to quit. While they may not have told him that it was the
only way to deal with the problem that he had, it seems very unlikely on the
evidence that I have heard that they would have suggested any other method.
Clearly another method would have been for him to join with the defendant
in making a consent application under s53 and schedule 7 to the Family law
Act 1996, but this avenue would not have permitted the claimants to regain
possession. Dealing with his request as they did meant that the defendant’s
rights to remain in her home were subject to their decision as to whether or
not she should be allowed to do so, rather than her remaining in the home as
of right - (as they describe it the McGrady situation).
56. I have considered the submission of Mr Oliver that this case is on all fours
with McCann. Whilst superficially that may be the case, there is in fact an
important difference between the cases. Apart from the difference conceded
by Mr Oliver (that the occupier against whom possession was being obtained
was the allegedly violent one) there was the fact that factual matrix meant
that in that case the local authority had a potential ground (Ground 2(b) of
schedule 2 HA 1985) under which he was in any event at risk had the notice
to quit not been served. Although in McCann the tenant was successful in
obtaining a finding that he had been deprived of his home without the right
to challenge the proportionality of the action taken against him, what he was
found to have lost was the opportunity to question the case that the council
would have had to put forward. Whilst therefore accepting that the facts are
similar they do differ in materially. In this case, absent the notice to quit, the
local authority had no grounds for possession.
37
57. Mr Oliver then submits that I should follow the guidance of Lord Phillips at
paragraph 111 of Powell because in this case, as in that case, alternative
accommodation will be made available. The cases are however not the same.
Of course the factor of alternative accommodation will carry weight, but not
the same “almost inevitability” that that case envisages. The circumstances
being considered in that case are the reallocation of a limited and fluctuating
housing stock, where housing is provided to someone who is homeless and
who, far from being granted a secure tenancy, has only been granted a
licence under the homelessness regime covered by Part VII of the Housing
Act 1996. There are clear policy reasons why such a licence is not secure. It
is usually supplied in an emergency, and the local authority need to have the
flexibility to be able to manage their housing stock in those circumstances
(para 10 of the Judgment). So in those cases it will rarely if ever be possible
to take an article 8 point where alternative accommodation is offered. In this
case however the defendant had been a secure tenant of the Claimants since
1996 and of this property since 2002.
58. Finally he submits that the 15 year policy is a reasonable and rational policy.
I accept that some policy on these lines is sensible and rational but it does
not make sense to me that there are not exceptions made to it. A 15 year
period can only be arbitrary. The length of time a person has been
established in their home, length of time that the defendant has been a tenant
of the council in total, and the reasons why there is not a continuous period
if the whole period exceeds the magic 15 years should all, in my judgment
be matters that the council should be able to take into account. If a fair result
38
is to be arrived at then all these matters need to be weighted (no doubt with
other matters as well) to arrive at a sensible method of determining whether
or not the allocations policy should trump all. But, by itself this would not be
a point which I would determine against the claimants. They are entitled to
take length of time in this property into account, and I do not consider that
the 15 year rule is irrational or unreasonable. They could, in the discretion of
Mrs Fox, who explained to me that the final decision was hers, have taken
account of the previously occupied house or other factors. That factor is in
my judgment something I am entitled to take into account when weighing
the balance of what is proportionate in this case.
59. The test that I have to apply is: Was seeking possession in this case
proportionate means of achieving a legitimate aim? Was it necessary in a
democratic society. The guidance that I am given in Pinnock at paragraph
52 is that where (as here) the person has no right in domestic law to remain
in occupation of his home, the proportionality of making an order for
possession at the suit of the local authority will be supported not merely by
the fact that it would serve to vindicate the authority’s ownership rights. It
will also, at least normally, enable the authority to comply with its duties in
relation to the distribution and management of its housing stock.
60. Of course I accept the enormous demands on the Local Authority for their
housing, and also the need that they have for family houses of the nature of
the property in this case and in the area in which it is situate. I accept that an
order for possession will inevitably serve to vindicate their property rights.
Their need to prioritise and allocate housing doing their best to reach
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consistent fair decisions is recognised in the case law. In this respect the
latitude given to authorities who are carrying out that exercise (and I am
considering here the judgment of Lord Bingham in Quazi at paragraph 25
where he referred to the adoption by Srasbourg of a very pragmatic and
realistic approach to the issue of justification) is very wide. It is this question
which is central to this case. Of course the Council are apparently justified in
seeking possession of a home occupied only by 2 adults (and one on a part
time basis) which is suitable for a family with young or growing up children
who have a need for the space (and garden) which this home could provide.
How can they be said to be unreasonable when they have a waiting list for
such accommodation and where, if the allocation was from a clean sheet of
paper, no doubt the defendant would not even begin to satisfy the criteria for
occupation of this house. The balance, it can then be argued, weighs even
more heavily against her when the availability and offered provision of a 2
bedroom flat is taken into account.
61. Against that I have to look at the submissions made on the defendant’s
behalf by Mr Barber at paragraphs 41 and 42 above. In considering those
submissions I have to look at them in the light of the fact that the defendant,
as a consequence of the actions of her husband (to an extent advised by the
council), is no longer a secure tenant and indeed has no contractual right to
remain in her home. I have to look at the fact that if she has no rights to her
home then that is only because of a process over which she had no control,
and of which she had no notice. A person’s home, with security of tenure, is
something of immense value, and deserving as the convention requires, of
respect.
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62. I have already said that I am not prepared to hold that the 15 year rule is
irrational, but that I would prefer it had the possibility of exceptions. I have
reservations about his submission set out at paragraph 51 (a) above, that
Monk cannot survive the full effect of an article 8 challenge. It remains the
law and I must apply it (as was accepted by Mr Barber). I observe however
that the more unfair its application appears on the facts of a case the more
likely it is that the reliance on it will not be proportionate. Ultimately in this
case I have looked at whether the council have in fact given proper weight to
the Monk circumstances in which the house fell into their hands, and
whether they have considered the prejudice suffered by the defendant as a
result of that fact, as against other tenants who retained security by other
permitted routes. I have looked at the fact that the proceedings come about
really through no fault on the part of the defendant, and at the fact that she
had no possibility of intervening once the husband went to the council. In
my judgment their having the possibility of obtaining possession in this case
was a windfall. Parliament can consider enacting law which will enable
under occupied property to be recovered, and enable re-allocation of
property according to need, and allow tenants to be moved from one
property to another. If that occurs all local authority tenants will have their
situations dealt with fairly and on the same basis. Until that happens Local
Authority tenants have security in accordance with the present law. The
basis of that security and the distinctions between secure and non secure
tenants are set out at paragraph 10 of the Judgment of Lord Hope in Powell.
I consider that I must place in the balance the fact that the council in this
case would not be in the position that they are now in but for the notice
given by Mr Bailey.
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63. I was not assisted by submission (b) in paragraph 51 above. I have found the
guidance in Pinnock and in Powell of assistance in this case, and have
sought to apply that guidance in this judgment. I accept that neither decision
relates to a “Quazi” situation.
64. I am not sure that I have fully understood (d) of paragraph 51. It seems to me
that the council, having appreciated their good fortune in being able to
regain possession, have indeed sought to apply their allocation principles,
and to make a decision in line with effective housing management. I have
taken the assertion that the case is based purely on a rule of law outside the
traditional principles of social housing to refer to the rule following Monk.
65. With those qualifications I accept the submissions made by Mr Barber. In
looking at whether it was necessary in a democratic society to apply for
possession and whether it was a proportionate means of achieving a
legitimate aim, I have to accept that the council was in a strict sense legally
entitled to do so, and that they were not motivated by bad faith and were
simply pursuing the goal of satisfying the needs of those on their housing
list. I am not satisfied however that their decision to seek possession was
however either necessary in a democratic society or proportionate in the
circumstances of this case. This defendant had lived in this property since
2002, had lived in a previous council property since 1996, and had moved
from that property mainly at the behest of the council. Had she not moved
and remained in her previous property she would be secure under the 15 year
rule. She has spent money on this property and any move involves further
expenditure of money. In a case such as where her husband had given the
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present notice in circumstances where she could do nothing about it (and did
not even have notice of it until either it had taken effect or possibly very
shortly before) I do not find it reasonable for the council without more to
rely on that notice. Where a tenant is without blame it seems to me that the
council should look and see whether otherwise they might be entitled to
obtain possession. If they have grounds within the statutory regime then it is
quite right that they should do so, and any challenge to their rights on article
8 grounds in my view will be met by their rights following the notice to quit,
as well as the statutory grounds entitling them to possession. Where there are
no statutory grounds available to them (as here), and where there is no fault
on the part of the defendant, and the defendant had previously had and
enjoyed security of tenure without complaint, an order for possession would
in my view breach the defendant’s article 8 rights.
66. In my Judgment the council decision to take possession proceedings and to
rely on the notice to quit in this case is not proportionate.
67. My decision that the time given by the Notice to Quit was insufficient and
In those circumstances I dismiss this action for possession. As the second
part of my Judgment makes clear if I am wrong on that ground then I
dismiss the action for possession on the basis that the action is not
proportionate and is a breach of the art 8 rights of the defendant.
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