It is perhaps no surprise following the cases that we consider in section 4.2.2. of Chapter 5 that litigation continues to occupy the courts on the role of Article 8 (if any) in possession proceedings brought by local authorities, or other public bodies who are subject to the duty under section 6 of the HRA, to act in a human rights compatible manner.

The Private Acts of a Hybrid Public Authority
We considered this question in section 2.1.1 and noted that the tests of whether or not a body is a hybrid public authority and, if so, whether they are acting in a public or private role are not always easy to divine. The Court of Appeal in London Quadrant Housing Trust v Weaver¹ have been called upon to examine these issues and have expressed divided views, prompting an appeal to the House of Lords which is yet to be heard.

London Quadrant is a registered social landlord, which provides social housing to those in need with the assistance of government funded grants and as such is subject to statutory regulation in the management of its housing stock.² As an independent legal entity with charitable status, London Quadrant enters into private tenancy agreements directly with its tenants but some of those tenants are allocated by local authorities to meet their housing responsibilities to those unable to secure accommodation on the open market. Mrs Weaver was one such tenant who unfortunately fell into rental arrears and was evicted by London Quadrant. The issue that fell to be determined by the Court of Appeal was whether in terminating Mrs Weaver’s tenancy London Quadrant had to comply with section 6 of the HRA 1998 because it was a hybrid public authority which was acting in a public, rather than a private, capacity.³ London Quadrant conceded that they were a hybrid public authority but maintained that in terminating Mrs Weaver’s tenancy they were acting as a private landlord. The majority of the Court of Appeal disagreed. In seeking to determine whether an act was a private act, the majority were of the view that it was important to focus upon the context in which the act occurred in terms particularly of its source and nature as well as the character of the functions of the body in question. It was thus necessary to examine whether as a social landlord London Quadrant’s was discharging a public or private function. The fact that London Quadrant was partially funded from public sources and was acting in concert with local authorities in the provision of social housing pointed to the fact that it was discharging a public function.⁴ In deciding who should be allowed to receive the benefit of social housing, the termination of such tenancies was so inextricably bound up with this public function that it too was a public rather than a private act even though the right to terminate flowed from contractual rights under a private tenancy agreement.⁵ Rix LJ however dissented from the majority view. He was strongly of the opinion that in terminating a tenancy a social landlord was exercising a private right conferred by a private tenancy agreement.⁶ He furthermore expressed doubts that the concession made by London Quadrant that it was a hybrid public body extended to its role in the management of social housing through the entry into and termination of its tenancies.⁷ The consequences of the majority’s view is far reaching, branding many social landlords s hybrid public authorities and thus under the obligation to act in a human rights compliant manner in at least some of their functions in managing social housing. We wait to see whether the House of Lords will endorse the opinion of the majority or minority. In the meantime the judgment of the Court of Appeal on these important questions deserves close analysis.

Personal Circumstances and The Gateways
In Birmingham CC v Doherty Lord Hope tried to clarify the House of Lords decision in Kay v Lambeth LBC: Leeds CC v Price by further explaining the two gateways by which possession proceedings might be challenged – see section 4.2.2. Gateway (a) is the route by which possession proceedings may be challenged on human rights grounds under Article 8 where the law itself is incompatible. Gateway (b) is the route by which the decision to bring possession proceedings may be challenged by judicial review.

Under Gateway (a) the Lords in Kay:Price and Doherty had been divided between the majority view that the exceptional circumstances in which the law could be challenged under Article 8 related only to the law governing the right to possession and the minority view that those exceptional circumstances might encompass the personal circumstances of the occupier. Kay is going to be considered by the Strasbourg Courts and so we wait to discover whose views will prevail. The indications from McCann v UK⁸ are that the Strasbourg Courts may be more sympathetic to the minority view. In the meantime, the court are only be able to take into account an occupier’s personal circumstances under Gateway (a) in exercising its discretion to delay for a short period the order for possession that they are bound to make.

The role of personal circumstances under Gateway (b) has been considered by the Court of Appeal in a series of cases. These cases are Doran v Liverpool CC & Secretary of State for Communities and Local Government⁹, which concerned the eviction of a traveller from a caravan and as such was similar to Doherty, McGlynn v Welwyn Hatfield DC¹⁰, which concerned the eviction of a tenant for alleged anti-social behaviour, and Taylor v Central Bedfordshire Council¹¹, which concerned the eviction of trespassers in circumstances similar to that of Kay.

Under Gateway (b) the House of Lords in Doherty noted the uncertainty that prevailed in whether judicial review of a public body’s decision to take possession proceeding was confined to the conventional Wednesday test of reasonableness or incorporated wider human rights inspired proportionality grounds. We noted this uncertainty in the extracts in our concluding examination of Doherty at the end of section 4.2.2. The Court of Appeal in Doran, McGlynn and Taylor has tried to provide greater certainty and guidance to County Courts who face dealing with these types of possession cases on a daily basis. In both Doran and Taylor the Court of Appeal accepted that a conventional judicial review challenge encompassed a wide range of factors which could go beyond an assessment of whether or not their decision was rational and should take into account the personal circumstances of the occupier that were known at the time their decision was made. It was for the occupier to put forward their personal circumstances; the local authority, or other public body seeking possession, were not obligated to find out what those circumstances might be. They also acknowledged that the conventional judicial review test was increasingly being influenced by human rights notions. Toulson LJ explained the position in Doran¹²:

...the question of whether the council’s decision was unreasonable has to be decided by applying public law principles as they have been developed at common law, it is to be remembered that those principles are not frozen. Even before the enactment of the HRA, our public law principles were being influenced by Convention ways of thinking. Since its enactment, the process has gathered momentum. It is now a well recognised fact that the Convention is influencing the shape and development of our domestic public law principles, whether one uses the metaphors of embedding, weaving into the fabric, osmosis or alignment.

In Taylor Walker LJ also pointed out that there may be various points in time when a public body’s decision could be challenged as the possession proceedings progressed from the initial decision to inform the occupier of their intention to seek possession through to the decision to instigate proceedings and the final decision to enforce the possession order. Each of these decisions might be susceptible to a challenge by way of judicial review in the light of the circumstances known at the relevant time.¹³

Thus whilst personal circumstances may not presently be entertained under Gateway (a) they do call for consideration under Gateway (b). Walker LJ in Taylor explained in relation to possession proceedings by a public body that:¹⁴

“although there is a distinction between a defence raising Article 8 rights directly for decision by the court and the question whether the council as a public authority has made a lawful decision in the light of an occupier’s Article 8 rights, the distinction has, very largely, become academic.”

“If reasonableness” connotes something wider than rationality, that will be very close in reality to the court itself examining a defence based on Article 8.

Despite this chink through which personal circumstances may be entertained, it is clear it is very narrow. Only in McGlynn was the case remitted to the County Court for consideration of the reasonableness of the local authority’s decision. In Taylor the court declined to do so noting that it is unlikely that particular personal circumstances would make it unreasonable for a local authority to take possession proceedings against trespassers. In Doran there was ample evidence before the court to support the reasonableness of the council’s decision.

Termination of Joint Tenancies
When considered the justification for local authority possession proceedings in section 4.2.2, we noted that several cases concerned the compatibility of the rule laid down in Hammersmith and Fulham LBC v Monk¹⁵ whereby a joint tenancy may be brought to an end by one joint tenant serving a notice terminating the joint tenancy, leaving their co-tenant a trespasser with no common law ground upon which they can resist eviction.¹⁶ In Harrow LBC v Qazi, the House of Lords held that this common law rule was, without more, a sufficient justification for the interference with the respect due to an occupier’s home under Article 8. A view that was largely endorsed by the House of Lords in their decisions in Kay v Lambeth LBC; Leeds CC v Price¹⁷. It was only in exceptional circumstances that the court would be prepared to hold that an established rule was non-compliant. However, the Strasbourg Court in McCann v UK¹⁸ held the rule to be incompatible, not because the eviction might be substantively justified, but because it was disproportionate, there being inadequate procedural safeguards over the remaining co-tenant summary eviction as a trespasser. – see section 2.4.3. It is thus not surprising that there has been an attempt to question the compatibility of the rule in the domestic courts in Wandsworth LBC v Dixon.¹⁹

It is evident from Birmingham CC v Doherty²⁰ that the Law Lords (or least some of them) did not think much of the Strasbourg Courts’ views in McCann and in Dixon the High Court took a restrictive view of McCann. It held that McCann was confined to its circumstances where the local authority had persuaded Mrs McCann to sign the termination notice as a means of evicting her troublesome husband. The decision did not affect the compatibility of the common law rule in Hammersmith & Fulham LBC v Monk found in Qazi, and supported by Kay and Doherty. The rule was clear and formed part of the scheme endorsed by Parliament to control the respective rights of landlords and their tenants, as such under Gateway (a) it could only be found to be incompatible in exceptional circumstances. The High Court refused to classify the circumstances as exceptional, believing that there are sound reasons behind the rule.

References:
¹[2009] EWCA Civ 587.
²At the relevant time under the Housing Act 1996 by the Housing Corporation, the public body responsible for social housing, which has been replaced, following the enactment of the Housing and Regeneration Act 2008, by Tenants Services Authority and Homes and Communities Agency.
³S6(5) of the HRA 1998 provides a "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".
⁴Per Elias LJ [2009] EWCA Civ 587 at [35]-[38], [41], [55]-[57] and [62]-[72].
⁵Per Elias LJ ibid at [73]-[82].
⁶Per Rix LJ ibid at [147]-[159].
⁷Per Rix LJ ibid at [160].
⁸(2008) 47 EHRR 40.
⁹[2009] EWCA Civ 146.
¹⁰[2009] EWCA Civ 285.
¹¹[2009] EWCA Civ 613.
¹²[2009] EWCA Civ 146 at [52].
¹³[2009] EWCA Civ 613at [39]-[40].
¹⁴Ibid at [38] and [41].
¹⁵[1992] 1 AC 478.
¹⁶[2004] 1 AC 983.
¹⁷[2006] 2 AC 465.
¹⁸(2008) 47 EHRR 40.
¹⁹[2009] EWHC 27 (Admin).
²⁰[2008] 3 WLR 636.