Social housing providers must consider tenant circumstances when seeking to evict
October 2010
The decision by the European Court of Human Rights on 21 September 2010 in the case of Kay and Others v The United Kingdom means that some social housing tenants may now be offered a greater protection from eviction.
The case arose when summary possession proceedings were brought against Gavin Kay and seven other tenants ('the applicants'). They had been housed by the London Quadrant Housing Trust (LQHT), a charitable housing trust, in property owned by the London Borough of Lambeth (Lambeth) which had been leased to LQHT. In 1999, Lambeth gave notice to LQHT to terminate the head leases and LQHT in turn told the applicants that the leases had been terminated.
In August 2000, Lambeth brought summary possession proceedings against a number of the applicants. They argued that they were secure tenants of Lambeth and, in the alternative, that an order for possession against them would breach their right to respect for their homes under Article 8 of the Convention of Human Rights and Fundamental Freedoms (the Convention).
The judge ruled that the applicants were not tenants of Lambeth and therefore had no security of tenure under Part IV of the Housing Act 1985. Then, following the July 2003 decision of the House of Lords in London Borough of Harrow v Qazi [2003] UKHL 43[1] and on the basis of the majority view in that judgment, the judge struck out the applicants' alternative defence based on Article 8 without considering whether the specific personal circumstances arising in each of the applicants' cases rendered Lambeth's decision to seek possession disproportionate.
The applicants appealed. Both the Court of Appeal and the House of Lords dismissed the appeal. In April 2006, the county court made possession orders against each of the applicants. The applicants then took their case to the European Court of Human Rights under Article 8 of the Convention. The Equality and Human Rights Commission was granted leave to intervene in the proceedings. It was agreed that the central question for the court was whether the interference with the applicants' right to respect for their homes was proportionate to the aim pursued and thus 'necessary in a democratic society'.
The applicants argued that they were prevented from challenging the possession orders on the ground that the local authority's exercise of its power to seek a possession order was not compatible with their rights under Article 8 of the Convention. They contended that there was no opportunity before the County Court to test the proportionality of the interference with their Article 8 rights.
The government asserted that the interference with the applicants’ rights under Article 8 was ‘necessary in a democratic society’. It contended that while an eviction would involve ‘interference’ for the purposes of Article 8(1), such interference would ordinarily be justified under Article 8(2) in circumstances where the person was evicted in accordance with the domestic law of property and contract. However, an occupier would have a defence in evictions proceedings where: (1) the occupier challenged the domestic law itself as being incompatible with Article 8; or (2) the occupier challenged the decision of the public authority to seek possession as being unlawful on public law grounds.
The Equality and Human Rights Commission claimed that the law did not currently provide an adequate opportunity for a court to determine the proportionality of a proposed eviction where the defendant did not have security of tenure. It argued that proportionality was most likely to be an issue in respect of occupants who were vulnerable as a result of mental illness, physical or learning disabilities, poor health or frailty. The EHRC argued that it was for the court to ensure in every case that the proportionality of the eviction had been properly considered; it contended that examination of this issue should not depend on the defendant raising the question.
In its judgment, the Court made the point that “the loss of one’s home is the 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 to occupation has come to an end”. It saw its role in this case as being confined to determining whether the applicants “had the opportunity to contest the possession orders on the ground that they were disproportionate taking into account their personal circumstances”.
The Court held that there had been a violation of Article 8 of the Convention. This was because it had not been possible for the applicants to challenge the decision of the local authority to seek a possession order on the basis of the alleged disproportionality of that decision in light of their personal circumstances. The applicants should have been able to challenge the proportionality of the decision to evict them in front of an independent tribunal. As they did not have that opportunity, there had been a violation of Article 8 of the Convention. The Court noted that it found Article 8 violated in its procedural aspect only.
Implications for providers of social housing
This decision does not prevent providers of social housing from evicting tenants. However, even where providers have a right to possession, they are advised to give consideration to the proportionality of the decision to evict. In weighing up these decisions, providers of social housing should take the personal circumstances of the tenant into account. If a provider has properly taken into account these considerations, it is less likely that a court will overturn its decisions if they are challenged.
The full ramifications of this case are yet to be seen. However, it seems likely that the test for availability for judicial review to challenge possession proceedings may now be applied in a more flexible way – one which allows for personal circumstances of occupants to be relevant to the county court’s assessment of the reasonableness of a decision to seek a possession order.
Kay v UK (application no. 37341/06)
Author: Elizabeth Petch
Elizabeth Petch is a solicitor in the public and regulatory department of Bates Wells & Braithwaite London LLP. She has particular experience in drafting, interpreting and advising on codes of practice, their application and the principles involved in bringing prosecutions Elizabeth is currently developing a practice in health and safety law.
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