Further guidance on Article 8 following Pinnock

In the case of Thurrock Council - Aaron West the Court of Appeal has given further useful guidance on how Article 8 will be considered by the Courts following Pinnock, this time in relation to a wrongful claim for succession.

The situation that arose in West will be familiar to all those working in housing management.

In 2007 Aaron West moved in with his grandparents, George and Violet West, who had lived at their three bed-roomed Council house since 1967.He was subsequently joined by his partner and young son.In 2008, George died, allowing his widow to inherit the joint tenancy under s87(2) and 89 Housing Act 1985.In 2010, Violet died, leaving the younger generation in the Property.

As there could only be one succession of a secure tenancy, (s37 Housing Act 1985) the Council sought possession back from the occupants.As the tenancy vested in Violet estate, the Council could terminate it by serving Notice to Quit on the Public Trustee, which they did.

The occupants resisted on the grounds that they had resided there for four years, Aaron West had cared for Violet West who had mobility problems, nd this was a disproportionate interference with their Article 8 rights as they had no right to succeed, they had no other defence they might possibly raise.

The District Judge at Basildon County Court had sympathy with their plight and dismissed the Council application.He found that it had been the Defendant home for some time, and his son homes since birth. They had a strong local connection; he felt that whilst the Defendant family may be over-housed to some extent, and the Local Authority were had agreed they might rehouse the family, he felt that to evict the family to put into a smaller property would be disproportionate. He widened Lord Neuberger special category of people with physical and mental difficulties to include families with young children.

The Council, no doubt hearing the roar of water heading for a floodgate, understandably appealed.

The Court of Appeal emphatically rejected the District Judge reasoning, and allowed the appeal.

The principles of the Article 8 Defence and when it might be available were re-iterated in eight points made by Lord Justice Etherton which serves as a useful aide memoir:

  1. It is a defence to a Public Authority claim for possession if possession is not necessary in a democratic society, and is disproportionate in all the circumstances:that would be an infringement of Article 8 Rights.
  2. The Pinnock Test:is the eviction a proportionate means of achieving a legitimate aim?
  3. The threshold for establishing that a local authority is acting disproportionately and so in breach of Article 8 (where re-possession would otherwise be lawful) is a high one and will be met in only a small proportion of cases;the circumstances will have to be exceptional.
  4. The threshold is high because of the public policy and public benefit inherent in the functions of the housing authority in dealing with its housing stock, a precious and limited public resource.Social landlords, hold their housing stock for the benefit of the whole community and they are better equipped than the courts to make management decisions about the way such stock should be administered.
  5. In the absence of evidence to the contrary, a Public Landlord is to be assumed to be acting in accordance with its duties this alone will be a strong factor in support of the proportionality of making an order for possession without the need for explanation or justification by the local authority.Parliament decided in the 1985 Housing Act that there should be one succession.
  6. An Article 8 defence on the grounds of lack of proportionality must be pleaded and sufficiently particularised to show that it reaches the high threshold of being seriously arguably.
  7. Unless there is some good reason not to do so, the Court must at the earliest opportunity summarily consider whether the Article 8 defence, as pleaded, and on the assumption that the pleaded facts relied upon are correct, reaches that threshold: i.e it is the job of the District Judge in the County Court to be the gatekeeper of such a defence, and to swiftly decide whether it should go anywhere.
  8. Even where an Article 8 defence is established, in a case where the defendant would otherwise have no legal right to remain in the property, it is difficult to imagine circumstances where the defendant might have an unlimited and unconditional right to remain particularly where the defendant has never been a tenant or licensee of the local authority.

The Court found nothing exceptional about the housing needs of a couple of limited financial means who are the parents of a young child in fact rather than unusual, hey were entirely typical of those with a need for social housing

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