Salford City Council v Mullen & Ors [2010] EWCA Civ 336

Case No (1) B5/2010/0230, (2) B5/2009/1247,

(3) B5/2009/2054, (4) B5/2009/2615 and (5) B5/2009/1389

[2010] EWCA Civ 336

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM (1) THE HIGH COURT OF JUSTICE

Venue QUEEN’S BENCH DIVISION MANCHESTER DISTRICT REGISTRY

Mr Justice McCombe

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(2) BRENTFORD COUNTY COURT

Deputy District Judge Shelton

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Venue (3) LEEDS COUNTY COURT

His Honour Judge J Spencer QC

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Venue (4) IN BIRMINGHAM COUNTY COURT

District Judge Gailey

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Venue (5) IN MANCHESTER COUNTY COURT

His Honour Judge Raynor QC

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Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 30/03/2010

Before

LORD JUSTICE WALLER

Vice President of the Court of Appeal

LADY JUSTICE ARDEN

LORD JUSTICE PATTEN

Between

SALFORD CITY COUNCIL and MULLEN (2) MAYOR AND BURGESSES OF THE LONDON BOROUGH OF HOUNSLOW and POWELL (3) LEEDS CITY COUNCIL and HALL (4) BIRMINGHAM CITY COUNCIL and FRISBY (5) MANCHESTER CITY COUNCIL and MUSHIN THE SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT Respondent Appellant Respondent Appellant Respondent Appellant Respondent Appellant Appellant Respondent Intervener

(Transcript of the Handed Down Judgment of

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Between

The Respondent was not represented

Jan Luba QC and Paul Whatley (instructed by Glaisyers Solicitors) for Appellant

(2) Kelvin Rutledge (instructed by Corporate Services LB Hounslow) for Respondent

Jan Luba QC and Kevin Gannon (instructed by Scully & Sowerbutts Solicitors) for Appellant

(3) Ashley Underwood QC and Helen Greatorex (instructed by Leeds City Council Legal Department) for Respondent

Jan Luba QC and Adam Fullwood (instructed by Zermansky & Partners) for Appellant

(4) Jonathan Manning (instructed by Legal Services Birmingham City Council) for Respondent

Jan Luba QC and Michael Singleton (instructed by Evans Derry Binion Solicitors) for Appellant

(5) Jan Luba QC and Adam Fullwood (instructed by Platt Halpern Solicitors) for Respondent

Jon Holbrook (instructed by City Solicitor, Manchester City Council) for Appellant

Daniel Stilitz QC and Ben Hooper (instructed by Treasury Solicitors) for Intervener

Hearing Hearing dates : 16 th– 19 th March 2010

Judgment

Lord Justice Waller :

Introduction

[1]This is the judgment of the court in five appeals heard by us between 16th and 19th March 2010. They were listed and heard together because they raise points of considerable concern to Judges and District Judges hearing possession proceedings brought by local authorities, particularly in cases where the occupiers have no security of tenure under statutory schemes relating to social housing. The points arise from difficulties that those advising parties and the judges are having in interpreting guidance given in two decisions of the House of Lords (not, it should be said, concerned at least directly with such schemes) Kay v Lambeth London Borough Council

[2006] UKHL 10

[2006] 2 AC 465

(“Kay”) andDoherty v Birmingham City Council

[2008] UKHL 57

[2009] 1 AC 367

(“Doherty”). The points arise in a number of different contexts depending on the statutory scheme or the type of non-secure tenant. There is at present listed before the Supreme Court Pinnock v Manchester City Corporation (“Pinnock”)

[2009] EWCA Civ 852

;

[2010] 1 WLR 713

, due to be heard in July before a panel of 9 Supreme Court Justices. The size of the panel would indicate that the guidance in Kay and Doherty will be looked at again. In Pinnock they will consider the position in the context of occupiers who were “demoted tenants”. These five appeals are concerned with occupiers who were either “Introductory tenants” or provided with accommodation as “homeless persons”. Rather than stay these appeals pending the decision in Pinnock the Court of Appeal was persuaded that it might assist in the resolution of the problems if the Supreme Court had before it occupiers other than a “demoted tenant”. It follows that it is important that we produce a judgment with some urgency. A further purpose of the judgment is to provide guidance as quickly as possible to the courts dealing with these cases on a regular basis to assist them with the many cases that they will have to deal with in the period between now and such time as the judgments of the Supreme Court are available. To achieve this purpose, much of the detail about the background to the present state of the law has been omitted.

[2]We will use in large measure the skeleton argument of Mr Stilitz QC who appears for the Secretary of State who has intervened in these appeals and intervenes in Pinnock to set the scene and identify the issues. This is not intended as any slight on others but is selected because it contains much material set out in a way we do not understand to be contentious and which we can simply adopt in the interest of speed. We should say in addition that we were particularly grateful to Mr Luba QC who has appeared for the occupiers who provided us with house-keeping notes to help us with preparation and orchestrated the agreement of issues. He also conducted the appeal for the occupiers with his customary clarity and realism. We are also grateful to all other counsel who prepared extremely helpful skeletons and conducted the oral hearing with commendable brevity and realism in light of the authorities binding on the Court of Appeal.

Background

[3]

Article 8(1) of the European Convention on Human Rights

(“the ECHR”) grants every person the right to “respect” for his “home”. However, for this purpose, the scope of the term “home” is not determined solely by reference to rights under domestic law. If a person has lived in premises as his home for a sufficient period, those premises may be his “home” for Article 8 purposes even if he has no domestic law right to remain in occupation. It follows that where premises constitute a “home”, a possession order in favour of a local authority will amount to an “interference by a public authority” with Article 8 rights within the meaning of Article 8(2), even if the occupier has no domestic law right to remain. Further, by Article 8(2), such an “interference” will breach Article 8 unless (among other things) it is proportionate, having regard to the aim pursued.

[4]There is therefore the possibility, at least in principle, that the grant of an order for possession of a person’s “home” will breach Article 8 by being, in all the circumstances, disproportionate. This possibility has given rise to the two House of Lords decisions Kay and Doherty by which we are bound but which may be about to be reconsidered in Pinnock. In each case, the majority rejected the argument that the county court should itself rule on whether a possession order would be a proportionate step under Article 8(2). Instead in paragraph [110] of his leading majority speech in Kay, Lord Hope limited the circumstances in which a county court might decline to make a possession order (that domestic law otherwise required) to two situations: 1 First, if it is seriously arguable that the law which enables the county court to make the possession order is itself incompatible with Article 8 (so-called “gateway (a)”). None of the parties seek to rely on gateway(a) in this Court in these appeals. In the introductory tenancy appeals (i.e. Hall v. Leeds City Council, Frisby v. Birmingham City Council and Mullen v. Salford City Council) any such argument is precluded in this Court by R (McLellan) v. Bracknell Forest Borough Council

[2001] EWCA Civ 1510

[2002] QB 1129

, per Waller LJ at [67]. In relation to the “homeless” appeals (i.e. HounslowLBC v Powell, and Manchester City Corporation v Mushin) any such argument is precluded in this court by Sheffield CC v Smart

[2002] EWCA Civ 4

[2002] HLR 34

particularly per Laws LJ at [39-40]. 2 The second situation, known as “gateway (b)”, arises “if the defendant wishes to challenge the decision of a public authority to recover possession as an improper exercise of its powers at common law on the ground that it was a decision that no reasonable person would consider justifiable”. If the point is “seriously arguable”, paragraph [110] would suggest in general terms that a gateway

(b) defence of this form is permitted to be raised in the County Court. Gateway (b) as defined by Lord Hope in Kay was further refined in Doherty [52-55]. The five occupiers in these appeals each sought to raise a gateway (b) defence in the possession proceedings in the County Court. The question whether there is a “public law “ defence and if so its scope and whether it can be raised in the County Court is a major problem for advisers, District Judges and Circuit Judges in dealing with possession actions in the County Courts.

[5]In the case listed in the Supreme Court in July this year, (Pinnock), the Court of Appeal ruled in relation to demoted tenants that that statutory scheme precluded the raising of a gateway (b) defence in the County Court. If a demoted tenant was to make an attack on the decision of the local authority to take possession proceedings it could only do so via the traditional judicial review process in the Administrative Court, persuading a County Court to adjourn the possession proceedings for that purpose if necessary. The Court of Appeal went on to consider in the alternative the width of gateway (b) and ruled in that case that Mr Pinnock had not established such a defence. If Pinnock is correctly decided (and it cannot be challenged before us) it is important for advisers, District Judges and Circuit Judges to know in which instances a gateway (b) defence is available in the County Court and in which not. It is also important to be clear as to the scope of a gateway (b) defence in relation to the different types of non-secure occupier. They need to be clear both to discern arguability in cases where the defence is available in the County Court, and, as importantly, to discern arguability in the context of whether an adjournment should be granted to allow a traditional judicial review to take place if that is the appropriate course.

[6]We append to this judgment the issues as agreed between the parties with the comments also agreed as to what is and what is not open to us to consider in this court. It is however helpful to identify the arguments that the Secretary of State addresses as a means of identifying the differences between the parties which we believe allows us to deal with the agreed issues. Taking each of the Secretary of State’s submissions which we will place in italics the position is as follows: 1 Contrary to the submission ofManchester City Council (“Manchester”)and Leeds City Council (“Leeds”),and theLondon Borough of Hounslow (“Hounslow”), section 38 of the County Courts Act 1984 (“the 1984 Act”) does not prevent a county court from determining a “gateway (b)” defence. This recognises an attack by certain of the Local Authorities represented by Mr Underwood QC, Mr Rutledge and Mr Holbrook (and before us Birmingham, represented by Mr Manning, did not join that attack) on that aspect of gateway (b) which allows for the public law defence to be raised in the County Court at all. It was not seriously pressed as a point before us in the light of the refinement of paragraph 110 of Kay in Doherty by which we are bound. It is of course a major plank of Mr Luba’s argument of the occupiers that a defence must be available in the County Court if Article 8 is to be complied with. 2 An occupier may in principle raise a gateway (b) defence in any possession proceedings that are brought by a public authority, unless the particular statutory scheme at issue makes clear that the county court cannot entertain such a defence (an example of the latter being the demoted tenancy regime considered by this Court inPinnock). This was a position supported by Mr Manning for Birmingham. Mr Luba for the occupiers submitted that Kay and Doherty had swept away any restrictions which may have been previously thought to exist under the “demoted” or “introductory” schemes. He accepted he could not challenge Pinnock (demoted), but sought to distinguish “demoted” from “introductory” and thus to suggest that this court was no longer bound by Manchester City Council v Cochrane [1999] 1 W.L.R.809 (“Cochrane”) and R ( McLellan) v Bracknell Forest Borough Council

[2002] QB 1129

(McLellan) which were concerned with “introductory tenants”. 3 Like the demoted tenancy regime, the introductory tenancy regime at issue in the Hall v. Leeds, Frisby v. Birmingham City Council and Mullen v. Salford City Council appeals does not allow a gateway (b) defence to be raised in county court possession proceedings. Rather, any public law challenge to a local authority’s decision-making under the introductory tenancy regime must proceed by way of an application for judicial review. This was the position supported either in the alternative by Leeds, Hounslow, and Manchester or as its primary case by Birmingham. Mr Luba’s position for the occupiers was as under (2) above. 4 Where it applies, gateway (b) does not extend to a full ECHR proportionality review: Doherty and Doran v Liverpool City Council

[2009] EWCA Civ 146

[2009] 1 WLR 2365

(“Doran”). All parties accepted that before the Court of Appeal this was the position. 5 A gateway (b) defence falls to be determined by reference to the facts as they appeared, or should have appeared, to the local authority at the time it made its decision to seek possession. This is a key issue and will need examining in more detail. 6 When applying the gateway (b) test, close regard should be had to the particular statutory scheme at issue, and to any procedural (or other) rights that it affords occupiers (as well as to the absence of any such rights). This was not seriously in issue but where it leads will need consideration under (5). 7 Steps taken by a local authority to obtain a possession order once a notice to quit has been served should not be characterised as separate “decisions” that are amenable to public law review by the county courts under gateway (b). Mr Stilitz and Mr Underwood have to distinguish certain authorities in the Court of Appeal in particular Barber v London Borough of Croydon

[2010] EWCA Civ 51 (Barber)

if they are to make this submission good. 8 Pinnock is due to be heard in the Supreme Court on 5-8 July 2010. In that hearing, or in any further appeal in these proceedings, the Secretary of State reserves the right to argue that the Supreme Court should depart from Kay and Doherty. In this Court, however, Kay and Doherty are binding authorities, and the Secretary of State’s submissions are framed accordingly. All parties worked within this framework and reserved their right to raise before the Supreme Court arguments much more far reaching than they could before us.

[7]We turn next to the relevant statutory regimes. Again we gratefully adopt the summary from Mr Stilitz’s skeleton which we do not believe to be controversial. THE RELEVANT STATUTORY REGIMES Secure tenancies

THE RELEVANT STATUTORY REGIMES

[8]The five present appeals concern tenancies (or licences) that are “non-secure”. It is, however, necessary briefly to outline the “secure” tenancy regime in Part IV of the Housing Act 1985 (“the 1985 Act”), as this forms part of the relevant legislative background to the statutory schemes at issue in these appeals.

[9]By section 79 of the 1985 Act (as read with sections 80 and 81), all tenancies and licences of dwelling-houses granted by local authorities are “secure” unless one of the exceptions listed in Schedule 1 to the 1985 Act applies.

[10]Where a tenancy (or licence) is “secure”, the county court may not make an order for the possession of the dwelling-house in question save on the grounds set out in Schedule 2 to the 1985 Act (see section 84(1) of the 1985 Act). The grounds include matters such as non-payment of rent, and causing a nuisance or annoyance to others in the locality (see Grounds 1 and 2).

[11]Further, the local authority cannot in general bring possession proceedings without having first served notice on the tenant specifying, with particulars, the ground on which possession is to be sought (section 83(2)(b)-(c) of the 1985 Act). Significantly, in any subsequent possession proceedings, the county court must itself be satisfied that one of those grounds in fact applies: it is not sufficient that the local authority rationally believes this to be the case. Equally significantly, even where the local authority has satisfied the court that a relevant ground for possession exists, the county court nevertheless retains a discretion as to whether or not to order possession (see section 84(2)).

[12]It is thus clear that Parliament intended to provide secure tenants with significant procedural and substantive protections against eviction.

Homelessness (the Powell v. Hounslow and Manchester v. Mushin appeals)

[13]Part VII of the Housing Act 1996 (“the 1996 Act”) sets out the duties of local authorities in relation to homeless persons.

[14]By section 193(1) of the 1996 Act, the primary duty applies where a local housing authority is satisfied that an applicant is (among other things) homeless and did not become homeless intentionally. In these circumstances, section 193(2) imposes a duty on the local housing authority to secure that accommodation is available for occupation by the applicant. Ms Powell and Mr Mushin were both given tenancies pursuant to section 193 of the 1996 Act.

[15]The section 193(2) duty ceases in various circumstances, such as if the applicant becomes homeless intentionally from the accommodation that has been made available for his occupation (section 193(6)(b) of the 1996 Act).

[16]Where a local authority decides that its section 193(2) duty has ceased, the applicant concerned has the right to request that the local housing authority reviews its decision (section 202(1)(b) of the 1996 Act). Any such review must be conducted in accordance with section 203 of the 1996 Act, and the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999, SI 1999/71. If the applicant is dissatisfied with the decision on the review, he may appeal to the county court “on any point of law arising from the decision or, as the case may be, the original decision” (section 204(1)). Thus in this context Judicial Review is effectively available in the County Court.

[17]By section 79 of and paragraph 4 of Schedule 1 to the 1985 Act, tenancies granted under section 193 of the 1996 Act are not secure (unless the local housing authority specifies otherwise). Parliament thus decided to exclude such tenancies from the procedural and substantive protections that apply in the case of secure tenancies. The policy background to this legislative choice is explained in the witness statement of Alan Edwards. In summary, local authorities need to be able to recover possession of homelessness accommodation in a swift and simple manner so as to be able to make efficient and cost-effective use of their limited resources in the housing field.

[18]Subject to the right to a review in circumstances where the local authority decides that its homelessness duty has ceased (see section 202 of the 1996 Act), the local authority is not required by the legislation to make out the grounds required for the termination of a non-secure tenancy when seeking possession from an occupant whom it has housed pursuant to its homelessness duties. The only procedural protections provided by statute are those contained in the Protection from Eviction Act 1977 (“the 1977 Act”), and in particular the requirement to obtain an order of the court in order to obtain possession: see section 3(1) of the 1977 Act. Some debate took place before us as to whether a local authority was bound to give reasons when serving a notice to quit and we were referred to the Notices to Quit etc (Prescribed Information) Regulations 1988, setting out what needs to be contained in a notice to quit and there is no reference to giving reasons. The introductory tenancy regime (the Hall v. Leeds, Frisby v. Birmingham City Council and Mullen v. Salford City Council appeals)

[19]The introductory tenancy regime is set out in Chapter I of Part V of the 1996 Act (sections 124-143). Its purpose is to allow local authorities to grant tenancies to new tenants, without conferring security of tenure upon them, until they have demonstrated during an introductory period that they are responsible tenants. It is effectively a period of probation.

[20]By section 124(1) of the 1996 Act, local housing authorities (and housing action trusts) may elect to operate an introductory tenancy regime. If such an election is in force, all tenancies that are granted will in general be introductory in nature: section 124(2). Mr Hall, Mr Frisby and Mr Mullen were all granted introductory tenancies pursuant to such an election.

[21]By section 125 of the 1996 Act, a tenancy remains introductory until the end of the “trial period”. This period is ordinarily one year, although it may be extended in certain circumstances.

[22]By paragraph 1A of Schedule 1 to the 1985 Act, an introductory tenancy cannot be a secure tenancy. Thus, during the trial period, the procedural and substantive protections in Part IV of the 1985 Act do not apply. Instead, sections 127-128 of the 1996 Act govern the circumstances in which a local authority may recover possession. Section 127 provides:

“(1) The landlord may only bring an introductory tenancy to an end by obtaining— (a) an order of the court for the possession of the dwelling-house, and (b) the execution of the order. (1A) In such a case, the tenancy ends when the order is executed. (2) The court shall make an order of the kind mentioned in subsection (1)(a) unless the provisions of section 128 apply.” (Emphasis added.)

[23]Section 128(1) and (5) set out two bars on the court entertaining possession proceedings:

“(1) The court shall not entertain proceedings for the possession of a dwelling-house let under an introductory tenancy unless the landlord has served on the tenant a notice of proceedings complying with this section. ... (5) The court shall not entertain any proceedings for possession of the dwelling-house unless they are begun after the date specified in the notice of proceedings.”

[24]The notice required by section 128(1) must comply with the conditions set out in section 128(2)-(4) and (6)-(7):

“(2) The notice shall state that the court will be asked to make an order for the possession of the dwelling-house. (3) The notice shall set out the reasons for the landlord’s decision to apply for such an order. (4) The notice shall specify a date after which proceedings for the possession of the dwelling-house may be begun. The date so specified must not be earlier than the date on which the tenancy could, apart from this Chapter, be brought to an end by notice to quit given by the landlord on the same date as the notice of proceedings. ... (6) The notice shall inform the tenant of his right to request a review of the landlord's decision to seek an order for possession and of the time within which such a request must be made. (7) The notice shall also inform the tenant that if he needs help or advice about the notice, and what to do about it, he should take it immediately to a Citizens' Advice Bureau, a housing aid centre, a law centre or a solicitor.”

[25]Section 129 and the Introductory Tenants (Review) Regulations 1997, SI 1997/72 (“the Review Regulations”) make provision for the reviews to which section 128(6) refers. Such a review must be requested within 14 days of service of the notice of proceedings (section 129(1)). Once such a request has been duly made, the local authority must “review” its decision (section 129(2)).

[26]Further:26.1 The review must be conducted by a person who was not involved in the decision to apply for an order for possession (regulation 3(1) of the Review Regulations). Where the original decision was made by an officer and is to be reviewed by an officer, the latter must be more senior than the former (regulation 3(2)).

26.2 The tenant has the right to request an oral hearing (regulation 2).

26.3 At any such oral hearing, the tenant may by regulation 5(2)(a) be represented, including by a qualified lawyer. In addition, the tenant may call persons to give evidence and put questions to any person who gives evidence at the hearing (regulation 5(2)(b) and (c)).

[27]If the trial period ends whilst possession proceedings are ongoing, the tenancy in question remains an introductory tenancy until “the proceedings are ... finally determined” (section 130(2)(b)).

[28]Section 138(1) provides:

“A county court has jurisdiction to determine questions arising under this Chapter and to entertain proceedings brought under this Chapter and claims, for whatever amount, in connection with an introductory tenancy.”

[29]The following features of the above regime should be noted:29.1 Whilst the local authority must have “reasons” for its decision to apply for a possession order, and must notify the tenant of those reasons, the county court is not given the function of determining the merit or validity of those reasons in the particular case.

29.2 Rather, where section 128 of the 1996 Act has been complied with, the court “shall make” the possession order sought by the local authority (see section 127(2)).

[30]These features reflect the underlying policy of the introductory tenancy regime, and enable it to help local authorities tackle anti-social behaviour effectively. See paragraphs [7] to [10] in McLellan.

The demoted tenancy regime

[31]In Pinnock this Court held that the demoted tenancy regime did not permit a defendant to raise a gateway (b) challenge in County Court possession proceedings. The same issue arises in relation to the introductory tenancy regime in Frisby, Hall and Mullen. Thus, in order to understand the significance of Pinnock in these three appeals, it is necessary to outline the demoted tenancy regime, and compare it to the introductory tenancy regime. In summary, the demoted tenancy regime is very closely analogous to the introductory tenancy regime (on which it was based), save that it applies to established tenants who have been shown to have behaved in an anti-social manner.

[32]The first step in the demoted tenancy regime is the obtaining of a “demotion order”. Pursuant to section 82A(2) of the 1985 Act, a local housing authority may apply to the county court for a demotion order in respect of a secure tenancy. The county court must not make a demotion order unless it is satisfied that:(a) the tenant or a person residing in or visiting the dwelling has engaged or has threatened to engage in anti-social behaviour or use of the premises for unlawful purposes; and

(b) it is reasonable in all the circumstances to make the order (see section 82A(4)). The effect of a demotion order is to terminate the secure tenancy and create instead a demoted tenancy (see section 82A(3)).

[33]The remainder of the demoted tenancy regime is set out in Chapter 1A of Part V of the 1996 Act (sections 143A-143P).

[34]A demoted tenancy reverts to a secure tenancy at the end of the period of one year from the day on which demotion took effect (unless the landlord has in the meantime commenced proceedings for possession): see section 143B(1) of the 1996 Act. However, whilst it subsists, a demoted tenancy does not attract the same rights of security as a secure tenancy and, in particular, the protections against the county court making an order for possession set out in section 84 of and Schedule 2 to the 1985 Act do not apply. Rather, by section 143D:

“(1) The landlord may only bring a demoted tenancy to an end by obtaining— (a) an order of the court for the possession of the dwelling-house, and (a) an order of the court for the possession of the dwelling-house, and 35. (1A) In such a case, the tenancy ends when the order is executed. (2). The court must make an order for possession unless it thinks that the procedure under sections 143E and 143F has not been followed.” (Emphasis added.)

[35]By section 143E, the landlord must not bring possession proceedings in respect of a dwelling let under a demoted tenancy unless a notice of proceedings has been served on the tenant, setting out the reasons for the landlord’s decision to apply for the order and informing the tenant of his right to request a review of the decision to apply for such an order.

[36]Pursuant to section 143F of the 1996 Act, a tenant under a demoted tenancy may request his landlord to review its decision to seek an order for possession within 14 days of being notified of the landlord’s decision to seek possession. If such a request is made, the landlord is bound to review the decision: see section 143F(2). The form of such reviews is governed by the Demoted Tenancies (Review of Decisions) (England) Regulations 2004, SI 2004/1679 which are very similar to the Review Regulations.

[37]The form and structure of sections 143D-143F of the 1996 Act thus closely resemble those of sections 127-129 of the Act.

[38]Similarly, like section 130(2)(b) of the 1996 Act, section 143B(4)(b) provides that a tenancy will cease to be a demoted tenancy if, after the demotion period has ended, any ongoing possession proceedings are determined in favour of the tenant.

[39]Finally, like section 138(1), section 143N(1) provides:

“(1) A county court has jurisdiction— (a) to determine questions arising under this Chapter; (b) to entertain proceedings brought under this Chapter; (c) to determine claims (for whatever amount) in connection with a demoted tenancy.”

[40]Overall, as Stanley Burnton LJ noted at [39] of Pinnock, there is no relevant difference between an introductory tenancy and a demoted tenancy. See also, to like effect, Waller LJ at [24] in R (Gilboy) v. Liverpool City Council

[2008] EWCA Civ 751

[2009] QB 699

. THE CASES SUMMARISED Powell v. Hounslow(homelessness accommodation)

THE CASES SUMMARISED

[41]On 2 April 2007, Ms Powell was granted a non-secure licence to occupy 15 Pine Trees Close, Cranford. A notice to quit was served on 17 March 2008 ([4] of the judgment below). In the county court Ms Powell conceded that she was in arrears, albeit that that was due to the non-payment of housing benefit. This will be a not uncommon position for such an occupier who as in Ms Powell’s case had failed to provide information to the department responsible for paying housing benefit. Ms Powell sought to rely on a gateway (b) defence consisting of various challenges to Hounslow’s decision to issue the notice to quit. Those challenges failed, and Hounslow was granted a possession order.

Manchester v. Mushin (homelessness accommodation)

[42]On 16 August 2006, Manchester let 4 Clacton Walk, Ardwick to Mr Mushin (and his wife) under a non-secure tenancy. Following allegations of domestic abuse, Mr Mushin’s wife and children left the property and were re-housed. Manchester issued a notice to quit on 22 November 2007. In the subsequent possession proceedings, Mr Mushin relied on a gateway (b) defence. His case was that he had not been guilty of domestic violence and that he wanted to retain his home in case his wife and children returned. Manchester’s case at trial was that their reason for serving a notice to quit was that Mr Mushin was occupying accommodation larger than he needed now that his wife and children had left. At the trial Manchester made a concession that a gateway (b) defence was open to Mr Mushin if he could establish that the reason for the notice to quit was domestic violence (as originally pleaded by Manchester). Indeed they conceded that the defence should at that stage succeed in defeating an order for possession if it was established that the reasons were domestic violence on the grounds that they had not given Mr Mushin an opportunity of rebutting the charge of domestic violence. Judgment was given on 14 May 2009. HHJ Raynor QC held that the reason why the notice to quit was served was the domestic violence and thus that by concession Manchester were not entitled to an order for possession. Permission to appeal was granted on the basis that an important issue was raised in relation to the availability of a public law defence. In addition Manchester amended their notice of appeal and skeleton seeking to withdraw the concessions they had made. Mr Holbrook for Manchester did not before us however seek to withdraw the concessions and simply sought to attack the judge’s finding of fact. It is doubtful whether permission to appeal would have been granted if that had been suggested as the only point on the appeal, but that said the facts of this case provide an example of the types of issues that occupiers in the Homeless context will raise, and of the problems being raised for advisers and the courts where they are raised.

[43]Manchester accepts that it remains under a duty to provide Mr Mushin with suitable accommodation pursuant to section 193 of the 1996 Act, and Manchester would now say that it was not right to make the concessions it did. It would submit that the correct approach should have been to demonstrate to the court that under the homelessness legislation the local authority was providing short-term accommodation to persons that were homeless; that does not provide a right to any particular dwelling; the local authority must be able to manage that accommodation by moving persons from accommodation unsuitable to accommodation that is suitable; the homeless person can challenge suitability under the homeless legislation and/or challenge any decision that the person is no longer owed a duty as a homeless person under the legislation; and it is that decision that can then be reviewed by the County Court. Thus the argument should have been that because Mr Mushin was in fact in accommodation for a family whereas he was now single, the court should have granted a possession order and any challenge to unsuitability should have been brought by Mr Mushin under the relevant sections applying to the homeless.

Hall v. Leeds (introductory tenancy)

[44]On 21 April 2008, Leeds let 147 Leeds and Bradford Road, Bramley to Mr Hall under a weekly introductory tenancy. Mr Hall was alleged to have breached his tenancy by (in essence) making excessive noise and engaging in other forms of anti-social behaviour. As a result, Leeds served a notice to terminate on 6 March 2009. Mr Hall requested a review of the decision to terminate the introductory tenancy, but in the event the notice was upheld. In the county court Mr Hall conceded that the review decision was lawful. Mr Hall does not appear to have disputed the breaches of the tenancy agreement. Rather, he argued that they were due to his mental illness. He further argued that he was entitled to raise a gateway (b) defence: the county court needed to consider whether it was reasonable and proportionate to make a possession order, and for this purpose it could consider all relevant matters up until the date of the hearing. (In the alternative, Mr Hall pleaded a claim for a declaration of incompatibility, but this is not being pursued in the Court of Appeal). Leeds conceded (wrongly, as Mr Underwood now submits for Leeds and in this he is supported by the Secretary of State in the context of this scheme) that the county court could consider the review decision and determine “whether it was reasonable or proportionate under the Human Rights Act”. The judge below appeared to accept that that was a “pragmatic” approach. However, the judge held that the Court could not go further given the mandatory wording of s. 127(2) of the Housing Act 1996; and he thus granted the possession order sought.

Frisby v. Birmingham City Council (introductory tenancy)

[45]Mr Frisby was granted an introductory tenancy on 23 April 2007 to 9 Hebden Grove, Hall Green. Allegations of excessive noise led Birmingham City Council (“Birmingham”) to extend by notice the introductory tenancy until 22 October 2008. In reliance on an alleged breach of the tenancy agreement, Birmingham served a notice of proceedings for possession. Mr Frisby requested a review of that decision. The panel adjourned the first hearing to make various further enquiries. At a further review hearing (which Mr Frisby did not attend) the decision to commence possession proceedings was confirmed. In the possession proceedings that followed Mr Frisby raised a gateway (b) defence in the form of various challenges to the lawfulness of Birmingham’s actions. The Judge below struck out that defence, but adjourned the proceedings for later consideration as to whether the proceedings should be adjourned whilst Mr Frisby pursued a judicial review claim.

Mullen v. Salford City Council (introductory tenancy)

[46]Salford City Council ("Salford") granted Mr Mullen an introductory tenancy of 135 Thorn Court on 15 September 2008. Two notices were served on Mr Mullen under section 128 of the 1996 Act. Although Mr Mullen initially disputed their validity, he conceded this point shortly before the substantive hearing below (see [23] of Mr Mullen’s first instance Skeleton Argument dated 10 January 2010). Mr Mullen requested a review of Salford’s decision to seek an order for possession. The review was conducted on 30 April 2009. At that time, Mr Mullen was subject to an injunction, and the injunction proceedings were ongoing. Mr Luba wished to support his argument which he can only make in the Supreme Court that the introductory scheme infringes Article 6 with a point which arose in Mullen. Mr Mullen submitted that he was inhibited from raising points on the review for fear of self incrimination and that Salford had no power to adjourn the date for the review hearing. That was said to support the argument that the introductory scheme infringes Article 6. As we understood it because it was accepted during the hearing before us that the proceedings for possession could be begun within the probationary period (generally one year) and then stayed until the risk of proceedings for contempt passed, this point is no longer taken. In the event, Salford’s decision to seek possession was upheld on review. On 12 January 2010, McCombe J granted Salford a possession order and granted Mr Mullen permission to appeal. Apart from dismissing Mullen’s appeal which it is conceded we must do, it is unnecessary to say more about Mullen. ISSUES Is a gateway (b) defence precluded in the county court in all cases?

ISSUES

[47]There were various threads to this argument pursued by Mr Underwood and Mr Rutledge supported by Mr Holbrook in his skeleton for Manchester. Reliance was placed on section 38 of the County Courts Act 1984, which precludes the County Court from granting mandamus, and certiorari. That however may only go to remedy. Mr Underwood argued more relevantly that on a proper analysis of the decision in Wandsworth London Borough Council v. Winder

[1985] AC 461

(“Winder”) a public law defence was only open to a litigant to defend a private law remedy. Thus he argued that Lord Hope’s reference at [110] of Kay to Winder as the foundation for the gateway (b) defence demonstrated that in Kay the majority in the House of Lords in adopting [110] were describing no more than the traditional public law defence in the County Court where the defendant had a private right on which the public law aspect depended. Thus his argument was that in the non-secure tenancy cases since none had any private right, it followed that a public law defence was never available to them as a defence in the County Court. He accepted, of course, that they had the right that any interested party has to apply for judicial review to the Administrative Court but that was a different matter. This submission he suggested had the merit of putting all non-secure occupiers in the same position i.e. of having to persuade the County Court that they had an arguable case for Judicial Review so that the possession proceedings would be adjourned, and of those occupiers having the further hurdle of persuading the Administrative Court to grant permission to bring the application for Judicial Review.

[48]But Mr Underwood had to accept that in Doherty the majority in the House of Lords had contemplated that even in a case where the occupier did not have a private right, he could run a public law defence in the County Court and that we were bound by that decision.

[49]That concession was clearly right and we can leave this issue there. That is not to say however that the county court has jurisdiction to consider a gateway (b) defence if the provisions of the statute setting up a particular scheme exclude that right. The question to which we now turn is whether the schemes which we are considering contain such exclusion. Do the particular statutory schemes under consideration on these appeals exclude the taking of a public law defence in the County Court? Homelessness

[50]Mr Rutledge for Hounslow argues that the gateway (b) test “only applies in exceptional circumstances where the domestic law contains an insufficient safeguard against the violation of Article 8 rights”, and argues that on that basis gateway (b) has no application in the Powell v. Hounslow appeal (see [8] of Hounslow’s Skeleton Argument). This submission does not strictly confine itself to venue and we will return to it when considering the breadth of any gateway (b) defence below. But as regards venue and the existence of a gateway (b) defence in the County Court, the position has been foreclosed by previous Court of Appeal authorities by which we are bound. The Court of Appeal in a recent homelessness case Barber v. London Borough of Croydon

[2010] EWCA Civ 51

, recognised the existence of a gateway (b) defence in possession proceedings in the County Court, and such a defence had been previously recognised in the Court of Appeal in McGlynn v Welwyn Hatfield District Council

[2009] EWCA Civ 285

The introductory tenancy regime

[51]As this Court confirmed in R (McLellan) v. Bracknell Forest Borough Council

[2001] EWCA Civ 1510

[2002] QB 1129

(McLellan), and as is common ground in this Court, the introductory tenancy regime is compatible with Article 8 (see Waller LJ at [67]). The Court of Appeal followed a previous decision of the Court of Appeal prior to the introduction of the Human Rights Act as to the proper construction of the provisions relating to that scheme Manchester City Council v. Cochrane

[1999] 1 WLR 809

(Cochrane). Sir John Knox delivered the lead judgment in Cochrane holding that by virtue of section 127(2), it was clear that if the procedure in section 128 had been followed, then the County Court was bound to make a possession

[52]Mr Luba submitted that paragraph 110 of Kay as refined in Doherty has swept away the reasoning in Cochrane and McLellan. In the result he submitted that if Judicial Review is arguable then the appropriate venue is the County Court.

[53]Even if we were tempted to try and find a way of adopting Mr Luba’s submission for its convenience, the way is blocked in our view by the Court of Appeal’s decision in Pinnock. It clearly supports the construction placed on Section 127(2) by Sir John Knox in Cochrane. In paragraph [50] of Pinnock Stanley Burnton LJ reached the same conclusion on the construction of the very similar wording in section 143D(2) of the 1996 Act, noting that the provisions in question were “quite clear”.

[54]Mr Luba in Hall seeks to suggest (at [36]-[38] of his Skeleton Argument) that Pinnock can be distinguished on the basis that:(i) under the demoted tenancy regime, possession proceedings are preceded by a demotion order; and

(ii) such an order will only be granted if the court - as an independent and impartial tribunal - concludes that it is reasonable to do so. These are distinguishing features but the central reasoning in Pinnock at [50]-[52] with which we are concerned turns on the meaning of the wording in sections 143B, 143D and 143N, rather than on the existence of the court’s power to grant a demotion order. Mr Luba does not identify any feature in the drafting of the equivalent provisions in the introductory tenancy regime that might suggest that some different construction should be applied. This as pointed out by Mr Stilitz is unsurprising, in circumstances where the demoted tenancy provisions were modelled on the introductory tenancy provisions (see [21] of Mr Owen’s statement). 54.1 Mr Stilitz for the Secretary of State also points to what Stanley Burnton LJ noted at [52] of Pinnock:

“I am encouraged in this conclusion [i.e. that section 143D limits the court’s function to determining whether the proper procedure has been followed] by the possible consequences of the county court having jurisdiction to conduct a judicial review of a decision on the review conducted under the statutory procedure. The county court does not have jurisdiction to quash that decision. If, therefore, it found that the decision was legally defective applying the Doherty test or on other domestic judicial review grounds (for example, because an irrelevant consideration had been taken into account), it might have no alternative but to dismiss the claim for possession. The result would be, by section 143B(4)(b), that the demoted tenancy became a secure tenancy, even if the landlord, given an opportunity to reconsider its decision (which it clearly could do if the original decision were quashed), would again decide to seek possession and could do so quite lawfully.”

The same reasoning can be applied in the introductory tenancy context and indeed was by Sir John Knox in Cochrane at 820C-821A.

[55]We should mention finally on this aspect that at [35] of Mr Luba’s Skeleton Argument dated 26 August 2009 in Hall he seeks to suggest that section 138 of the 1996 Act confers jurisdiction on the County Court to consider public law challenges. This argument was rejected in Cochrane at 820 B-C and Mr Stilitz points out this argument was rejected in Pinnock in relation to the analogous provision in section 143N(1) of the 1996 Act.

Does gateway (b) contemplate a full ECHR proportionality review?

[56]As in Kay, Lord Hope gave the leading majority speech in Doherty.

(b) , he concluded at [52]-[55]:

“[52] … the speeches in Kay show that the route indicated by this gateway is limited to what is conveniently described as conventional judicial review … [53] … it will be open to the defendant by way of a defence to argue under gateway (b) that the order should not be made unless the court is satisfied, upon reviewing the respondent’s decision to seek a possession order on the grounds that it gave and bearing in mind that it was doing what the legislation authorised, that the decision to do this was in the Wednesbury sense not unreasonable. This route offers a procedural protection under the common law. If taken, it will enable the grounds on which the respondent based its decision to be scrutinised. It might, on the facts of this case, provide the appellant with an effective defence to the making of the possession order. … [55] I think that in this situation it would be unduly formalistic to confine the review strictly to traditional Wednesbury grounds. The considerations that can be brought into account in this case are wider. An examination of the question whether the respondent’s decision was reasonable, having regard to the aim it was pursuing and to the length of time that the appellant and his family have resided on the site, would be appropriate. But the requisite scrutiny would not involve the judge substituting his own judgment for that of the local authority. In my opinion the test of reasonableness should be, as I said in para 110 of Kay, whether the decision to recover possession was one which no reasonable person would consider justifiable.”

[57]Lord Walker, also in the majority, suggested at [109] that human rights must be woven into the fabric of public law. At [123], he agreed with Lord Hope’s approach and concluded that “If the defence is focused … on the housing authority’s decision-making process the judge will in effect be hearing an application for judicial review on traditional review grounds.”

[58]Lord Rodger agreed (at [89]) with Lord Hope and Lord Walker.

[59]Lord Scott and Lord Mance, in the minority, would have favoured a wider approach which permitted the proportionality of the local authority’s decision to seek possession (within the meaning of Article 8(2)) to be determined under gateway (b): see Lord Scott at [84]-[85] and Lord Mance at [161]. However, Lord Mance recognised that this was not the view of the majority. He stated at [133]-[134]:

“[133] ... Gateway (b), as expressed in paragraph 110 in Kay was, as I see it, phrased so as to exclude any direct application of the Convention rights or of the Strasbourg Court’s test of proportionality, and to confine attention to common law grounds for judicial review, informed though they may increasingly be by ideas of fundamental rights … [134] The general distinction which thus emerges is recognised and described in R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, per Lord Steyn, at para 27, and Lord Cooke of Thorndon, at para 32, recognising though regretting the distinction, and in R (Association of British Civilian Internees: Far East Region) v Secretary of State for Defence [2003] QB 1397, paras 32- 37, where Dyson LJ, giving the judgment of the Court of Appeal, said that any abandonment of the common law’s Wednesbury unreasonableness test for a proportionality test was a step which could only be taken by this House.”

[60]Lord Mance concluded at [162]:

“ … I for my part regret that it has not been possible on this appeal to agree to modify gateway (b) in para 110 [of Kay] more generally, so as to allow express regard to be had to Human Rights Convention principles in relation to any defence raised against a public authority under the rule in Wandsworth London Borough v Winder …”

[61]It follows that the House of Lords’ decision in Doherty establishes that, whilst conventional judicial review is increasingly informed by principles of fundamental rights, a public law, gateway (b) challenge to a decision by a local authority to seek possession does not permit a proportionality review under

Article 8(2) of the Convention

as contemplated in paragraph 39 of Lord Bingham in Kay, quoted in paragraph 63 below. How wide is gateway (b) and how relevant is the particular statutory scheme, and any procedural (or other) rights that it affords occupiers?

[62]As Dyson LJ said in the context of possession proceedings under the Caravan Sites Act 1968, as amended (following Connors) by the Housing Act 2004, “The legislative and procedural framework is fundamental to any consideration of whether the authority was acting in a manner in which no reasonable authority could have acted …”; see his judgment in Smith v. Evans

[2007] EWCA Civ 1318

[2008] 1 WLR 661

. Dyson LJ also held at [44] in that case in, we emphasise, the context of a quite different scheme that :

“Since the amendment to the 1968 Act, I find it difficult to conceive of a case in which a public law defence would succeed …. It will only be in a truly exceptional case that it will even be seriously arguable that such a defence will succeed.” (Emphasis added.)

That in our view reflects the approach of the House of Lords in Kay and Doherty and the importance of recognising that the assumption should be that Parliament has passed laws which are Article 8 compliant. Indeed so far as we are concerned we are bound by decisions of this court in McLellan and Smart that the introductory tenancy schemes and the Homelessness legislation are Article 8 and Article 6 compliant and it will thus only be in highly exceptional cases that any gateway (b) defence to possession proceedings could be established.

[63]We remind ourselves of what Lord Bingham who was in the minority in Kay said and we do so:(a) because the difference between him and the majority was limited to two aspects and not to any great degree;

(b) because it shows what he thought in relation to the kind of schemes with which this case is concerned, and how there would have to be highly exceptional circumstances for him to contemplate a defence by reference to Article 8; and

[2008] LGR 474

; 47 EHRR 913. “ 34. Under some statutory regimes, as where discretionary grounds are relied on to terminate a secure tenancy under the Housing Act 1985, the court may make an order for possession only where, other conditions for making such an order being met, the court thinks it reasonable to do so. This enables the court to take account of all circumstances which it judges to be relevant. If, in any case covered by such a regime, the statutory conditions are satisfied and the court does, on consideration of all the circumstances, think it reasonable to make a possession order, the court will in effect have undertaken the very assessment which article 8(2) requires. In such a situation article 8(2) adds nothing of substance to the protection which the occupier already enjoys.” 35. Under some statutory regimes the court may be required to make an order for possession if certain prescribed conditions are met and there is no overriding requirement that the court considers it reasonable or just to make such an order. The statutory scheme is nonetheless likely to satisfy the article 8(2) requirement of proportionality if it is clear that the statutory scheme represents a democratic solution to the problems inherent in housing allocation. Thus in Poplar Housing and Regeneration Community Association Limited v Donoghue

[2001] EWCA Civ 595

[2002] QB 48

, the Court of Appeal found no breach of article 8(2) in the use of section 21(4) of the Housing Act 1988, as amended, to gain possession of an assured shorthold tenancy granted to a person who had been intentionally homeless, because (para 69) Parliament had intended to give preference to the needs of those dependent on social housing as a whole over those who, like the tenant, had been intentionally homeless. Similarly, in R (McLellan) v Bracknell Forest Borough Council

[2001] EWCA Civ 1510

[2002] QB 1129

, the Court of Appeal found no breach of article 8 where a housing authority determined the introductory tenancies of tenants whose rent was in arrears under section 127(2) of the Housing Act 1996, since (para 63) Parliament had decided that it was necessary in the interest of tenants generally and the local authorities to have a scheme whereby, during the first twelve months, tenants were on probation and could be evicted without long battles in the county court, there being (it was held) adequate procedural safeguards. The Court of Appeal took a similar approach when holding, in Sheffield City Council v Smart

[2002] EWCA Civ 4

[2002] HLR 639

, para 37, that Parliament clearly enacted the relevant statutory provisions upon the premise that while a tenant is housed as a homeless person he enjoys no security of tenure. See also Wandsworth London Borough Council v Michalak

[2002] EWCA Civ 271

[2003] 1 WLR 617

, paras 63, 78. Where a statutory scheme covers the case of an occupier, and conditions are prescribed for obtaining possession, and those conditions are met, it will only be in highly exceptional circumstances that the occupier will gain additional protection from article 8. 36. There are of course some cases (of which the present cases are examples) in which the relationship between public authority owner or landlord and individual tenant or occupier is not governed by any statutory scheme. But possession may be sought on expiry of the period for which the right to occupy was granted, or because the notice required by domestic property law to bring that term to an end has been given, or because one or more of the conditions on which the right to occupy was granted has been broken. It cannot be said that the relationship between the parties in such cases is the subject of a balance struck by Parliament, but it is not unrealistic to regard the general law as striking such a balance. The public authority owner or landlord has, broadly speaking, a right to manage and control its property within bounds set by statute. The occupier acquires a right, but only a limited right, to occupy. On due determination of that interest, a claim for possession must ordinarily succeed, since any indulgence to the occupier necessarily derogates from the property right of the public authority, whose rights are also entitled to respect. It is not therefore surprising that in P v United Kingdom (Application No 14751/89),12 December 1990, and Ure v United Kingdom (Application No 28027/95), unreported, 27 November 1996, the occupiers' complaints were held to be inadmissible because the public authority's interference or assumed interference was held to be clearly justified. It would, again, require highly exceptional circumstances before article 8 would avail the occupiers. The peculiar facts and circumstances of Connors could fairly be regarded as crossing that high threshold, given the positive obligation to which reference is made in paragraph 24 above. 37. Rarely, if ever, could this test be satisfied where squatters occupy the land of a public authority which they do not and (unlike Connors) never have had any right to occupy, and the public authority acts timeously to evict them. The public look to public authorities to preserve their land for public purposes and to bring unlawful occupation to an end, with the environmental hazards it is likely to entail. Rules 55.5(2) and 55.6 of the Civil Procedure Rules provide for the summary removal of squatters. The rule in McPhail v Persons, Names Unknown

[1973] Ch 447

must, in my opinion, be relaxed in order to comply with article 8, but it is very hard to imagine circumstances in which a court could properly give squatters of the kind described above anything more than a very brief respite. 38. I do not think it possible or desirable to attempt to define what facts or circumstances might rank as highly exceptional. The practical experience of county court judges is likely to prove the surest guide, provided always that the stringency of the test is borne in mind. They are well used to exercising their judgment under existing statutory schemes and will recognise a highly exceptional case when they see it. I do not, however, consider that problems and afflictions of a personal nature should avail the occupier where there are public services available to address and alleviate those problems, and if under the relevant social legislation the occupier is specifically disentitled from eligibility for relief it will be necessary to consider the democratic judgment reflected in that provision. Nor can article 8 avail a tenant, otherwise perhaps than for a very brief period, if he can be appropriately accommodated elsewhere (whether publicly or privately). Where, as notably in the case of gipsies, scarcity of land adversely affects many members of the class, an article 8(2) defence could only, I think, succeed if advanced by a member of the class who had grounds for complaint substantially stronger than members of the class in general. 39. The practical position, in future, in possession proceedings can be briefly summarised as follows. (1) It is not necessary for a local authority to plead or prove in every case that domestic law complies with article 8. Courts should proceed on the assumption that domestic law strikes a fair balance and is compatible with article 8. (2) If the court, following its usual procedures, is satisfied that the domestic law requirements for making a possession order have been met the court should make a possession order unless the occupier shows that, highly exceptionally, he has a seriously arguable case on one of two grounds. (3) The two grounds are: (a) that the law which requires the court to make a possession order despite the occupier's personal circumstances is Convention-incompatible; and (b) that, having regard to the occupier's personal circumstances, the local authority's exercise of its power to seek a possession order is an unlawful act within the meaning of section 6. (4) Deciding whether the defendant has a seriously arguable case on one or both of these grounds will not call for a full-blown trial. This question should be decided summarily, on the basis of an affidavit or of the defendant's defence, suitably particularised, or in whatever other summary way the court considers appropriate. The procedural aim of the court must be to decide this question as expeditiously as is consistent with the defendant having a fair opportunity to present his case on this question. (5) If the court considers the defence sought to be raised on one or both of these grounds is not seriously arguable the court should proceed to make a possession order. (6) Where a seriously arguable issue on one of these grounds is raised, the court should itself decide this issue, subject to this: where an issue arises on the application of section 3 the judge should consider whether it may be appropriate to refer the proceedings to the High Court.”

[64]The only difference between Lord Bingham and the approach of the majority as set out in paragraph 110 of Lord Hope and as redefined in Doherty relates to proposition 3(b) in paragraph 39 as Lord Scott pointed out in Doherty at paragraph 70. Its difference is only “slight though important” as Lord Scott said. Lord Bingham would allow the personal circumstances to be raised and considered directly by the court; paragraph 110 only allows the court to consider as a matter of public law whether the decision of the Local Authority is lawful on public law grounds in which as Lord Scott says “The personal circumstances of the defendant might well be a factor to which, along with other factors relevant to its decision, a responsible and reasonable local authority would need to have regard.”

[65]When then will a gateway (b) defence be available and how is that aspect intended to be dealt with? In the context of the two schemes with which we are dealing we would put it this way. In the introductory tenancy scheme the question will be whether there is some highly exceptional circumstance which should lead to the County Court adjourning the matter so that Judicial Review can be applied for in the Administrative Court. Circumstances personal or otherwise which Parliament must have contemplated would be likely to be present in the context of such a scheme could not be considered as ‘exceptional’ never mind ‘highly exceptional’. Thus for example it would be contemplated that difficult questions of fact as to whether anti-social behaviour had occurred or not would be something that Parliament would contemplate as likely. A Local Authority would not have to conduct a full inquiry to establish the truth or otherwise of such allegations knowing that those are just the situations in which getting witnesses to attend and give evidence would be difficult. With allegation and counter-allegation the Local Authority has to take a decision and unless it could be shown that it was arguable that no reasonable authority with the duties it had to perform in relation to managing its social housing could have taken the decision, there should be no question of adjourning the case until a tenant had brought judicial review proceedings. As Waller LJ said in McLellan at [97]:

“ … under the introductory tenancy scheme it is not a requirement that the council should be satisfied that breaches of the tenancy agreement have in fact taken place. The right question under the scheme will be whether in the context of allegation and counter-allegation it was reasonable for the council to take a decision to proceed with termination of the introductory tenancy.”

[66]The position of those granted tenancies under the homeless legislation is different in two respects. First if there is to be a judicial review that should take place in the County Court and second the legislation does not itself contain (in any event directly) a review procedure in relation to the facts which give rise to a decision to serve a notice to quit. But it is important to have regard to the legislative scheme in Part VII of the 1996 Act. In particular:66.1 Where the Local Authority accepts that an occupier will continue to be owed the duty under section 193 of the 1996 Act after possession has been recovered, it will be highly relevant - when assessing the reasonableness of the decision to seek possession - that the Local Authority will thus continue to be under a duty to secure that accommodation is available for occupation by the occupier after possession has been recovered. For instance, where possession is sought because the premises in question are larger than the occupier needs, and the occupier is to be accommodated in smaller (but still suitable) premises, it would require a highly exceptional case before the occupier could successfully raise a gateway (b) defence so as to impugn the decision to recover possession.

66.2 Further, it is relevant to recognise that where the Local Authority considers that the occupier will cease to be owed the duty under section 193 after possession has been recovered, or where the Local Authority can be said to be offering accommodation which is unsuitable, that decision will be subject to an internal merits review under sections 202-203 and, as necessary, to an appeal to the court on any point of law under section 204. A review will afford the occupier a full opportunity to make representations as to why the Local Authority should consider it still owes the section 193 duty and/or why the accommodation offered is or is not suitable.

66.3 Furthermore, it is relevant to have regard to the purpose of the homeless legislation under which a person has no right to a particular dwelling as home and is the subject of temporary arrangements under which the Local Authority must on the whole be free to regain possession, so as to be able to manage its accommodation in the interests of the homeless, as a group. If a person is homeless the Local Authority is bound to provide accommodation but not necessarily that which the homeless person occupies under the homeless scheme.

[67]Where a notice to quit has been served on a non secure tenant occupying accommodation as a homeless person it will take highly exceptional circumstances for there to be a gateway (b) defence. Barber may be an example of such circumstances where it seemed the Local Authority had been unaware when it served a notice to quit of the mental illness of the occupier and of the risk to his life if he were moved. Anything less than that kind of risk would be unlikely to qualify as so exceptional as to provide an arguable gateway (b) defence in the context of the homeless legislation. Can steps taken by a local authority to obtain a possession order once a notice to quit has been served be characterised as separate “decisions” amenable to public law review by the county courts under gateway (b)?

[68]At [39]-[41] of Taylor, Waller LJ offered what he described (at [38], and again at [45]) as a “suggestion” as to what decision should be the subject of review by the county court under gateway (b):

“[39] I would accept that the likely assumption of the majority in Kay was that the relevant decision that could be the subject of judicial review was the original decision to seek possession. Furthermore, Toulson L.J. was of the opinion in Doran that the court should not engage in a retrospective exercise by examining the facts as they are now found to be and asking whether the decision on those facts would have been lawful. [See [57]–[60]]. He was also of the view that the remission in Doherty was for the purpose of examining the facts known to the public authority when it made its original decision. I respectfully suggest that there is a difficulty with this approach having regard to the fact that in these cases the burden is on the occupier to raise the circumstances on which he relies and because the approach perhaps does not recognise the possibility that a public authority may make a series of decisions in the light of the facts as they appear. If one looks at it on the basis that, once the public authority knows facts that it has not known up until they are revealed, the public authority is bound to take a further decision that avoids the concept of an exercise in retrospectivity. [40] An authority such as the council in the instant appeals may make a decision on the facts as known to it to send a letter seeking possession. Prima facie it has no obligation to find out what the true facts are and the burden is going to be on the occupier to demonstrate any grounds relied on as providing an art.8 defence. If the occupier informs the public authority of relevant circumstances, the public authority will have to take a further decision as to whether to commence proceedings. If no letter is received and the facts are only divulged just prior to the hearing, the public authority in reality has to take a further decision as to whether to proceed. Indeed if the revelation is only during the hearing, the council in deciding to continue to press for an order takes yet a further decision. I do not see why if any one of these decisions could be shown to be ‘unreasonable’ whatever that means ..., it could not be attacked. [41] If that is an appropriate analysis, because the county court is seized of the matter, it will be able to see whether there is an arguable case that in deciding even with the revelation of further facts to continue to seek possession is unreasonable. ...”

[69]The Secretary of State through Mr Stilitz submitted that this suggestion should be rejected, for three reasons.

[70]First, he submitted the approach of Toulson LJ in Doran did not give rise to the practical difficulty to which Waller LJ referred. He pointed out that Toulson LJ held in [60] of Doran that the gateway (b) review should proceed by reference to the facts as they reasonably appeared “or should have appeared” to the local authority at the time it made its decision. Thus, he submitted the review is not limited to assessing reasonableness only by reference to those facts that the local authority was in fact aware of at the time of its original decision to seek possession: where appropriate, additional matters may be investigated and taken into account by the court for the purposes of assessing reasonableness, provided they are facts which the local authority ought reasonably to have ascertained prior to taking its decision to seek possession.

[71]Secondly, the approach suggested in Taylor risks giving rise to considerable practical difficulties of its own. For instance, where anti-social behaviour (or alleged anti-social behaviour) has caused the local authority to serve a notice to quit, a defendant may claim that the offending behaviour has since stopped, or has stopped since the local authority served its claim, or since it served its evidence, and so on. Each time the defendant occupier makes such a claim, the local authority may feel obliged to conduct further investigations so as to be able to put in relevant evidence in response, for fear of otherwise being found to have acted unreasonably. But this will only serve to lengthen the possession proceedings, and render them more complex and costly.

[72]Thirdly, he submitted that the suggestion in [39]-[41] of Taylor should in any event be rejected as a matter of principle. He submitted that gateway (b) in paragraph 110 of Kay was founded on the principle that under Winder the rent demand was ultra vires because no valid resolution had been passed. Thus he argued gateway (b) was dependant on being able to demonstrate that a notice to quit or a demand was ultra vires and void.

[73]Taking the objections in reverse order. First, we do not accept that gateway (b) is dependant on demonstrating that a decision or notice to quit is ultra vires but even if it was, the doctrine applies as much to demands as notices to quit and would certainly apply to a decision to commence proceedings. Second, we do not accept there is a practical difficulty in a situation in which an introductory tenant brings forth facts which show he has now improved his behaviour; a local authority will be bound to consider whether it should continue with the proceedings but it will not be arguable that it is unreasonable for the Local Authority to continue with them having given the tenant his or her chance and with others waiting for accommodation. Third, the first objection does not deal with the wholly new event that does occur after a notice has been served e.g. if the occupier in the homeless situation becomes so ill that moving him or her puts their life in danger.

[74]In any event, in Barber the approach advocated in Taylor was adopted by this court the lead judgment being given by Patten LJ. It was suggested that it was adopted by way of concession, but we do not accept that. Furthermore in McGlynn where Toulson LJ gave the lead judgment, the decision to commence proceedings was the decision that the court took as the one to which gateway (b) applied. We are thus bound to hold that gateway (b) can apply to any decision of the Local Authority relevant to seeking possession which could be the subject of Judicial Review.

[75]We should make clear that in the introductory tenancy scheme as in the demoted tenancy scheme the proper construction of the legislation means that any gateway (b) attack on any decision would have to take place in the Administrative Court and the role of the County Court would be limited to consideration as to whether such an attack was arguable. CONCLUSIONS IN THE PARTICULAR APPEALS Powell v Hounslow

CONCLUSIONS IN THE PARTICULAR APPEALS

[76]If a gateway (b) defence was arguable the appropriate venue for considering whether the Local Authority’s decision was unlawful was the County Court. The circumstances were not highly exceptional in the context of the homelessness legislation. The judge should have summarily dismissed Ms Powell’s attempt to raise a gateway (b) defence. The appeal should in any event be dismissed.

Manchester v Mushin

[77]If no concessions had been made and Manchester’s advisers had understood the position properly this attempt to raise a gateway (b) defence should also have been dismissed summarily. Mr Mushin was living in accommodation supplied to him as a homeless person with a family. As a fact he was now single and it did not matter why that was so. The Local Authority were entitled to give notice to quit and to put him in accommodation for a single person. If that was unsuitable or if they were going to suggest that he was no longer qualified to be treated as homeless, he had the right to challenge that decision under the legislation and indeed bring a challenge to the County Court on a point of law under section 204. There was nothing highly exceptional about Mr Mushin’s position. We would accept that if for some reason temporary accommodation had become permanent and if the family had lived there in fact for many years and if his wife was saying she was wanting to come back with the children that might produce a highly exceptional case in which it would be unreasonable for the Local Authority to continue with possession proceedings. But that was not this case.

[78]Because of the concessions which were not withdrawn we have had to consider the appeal on that basis and for the reasons given in a judgment given by Patten LJ, the appeal will in fact be dismissed.

Hall v Leeds

[79]Leeds were wrong to make the concession that the County Court was the appropriate venue to consider gateway (b) in the introductory tenancy scheme. What the judge ought to have considered was whether facts had become known to the Local Authority post the review which made it arguable that the decision to pursue the proceedings was unlawful. If the point was arguable he would have had to adjourn the possession proceedings to enable an application to be made for Judicial Review by the Administrative Court. In fact he should have held that it was unarguable that there was any unlawful decision. In the introductory tenancy scheme tenants are on probation; the review was not challenged and there is no basis for arguing that it is unlawful for a Local Authority to refuse to change its mind by reference to facts which simply seek to demonstrate that the behaviour of the occupier has now improved.

Frisby v Birmingham

[80]The judge’s decision was right in that he held he was bound by Cochrane and that if there was to be Judicial Review it would have to take place in the Administrative Court. What seems unfortunate is that this point was argued first and then the question whether there should be an adjournment was to be argued later. In McLellan [107-108] it was suggested that the Local Authority should set out in a statement the facts as to how it had reached a decision so that it could be considered whether there was a seriously arguable case without the need for any adjournment of the question of arguability. That, we would have thought, should be the norm so that delays of the kind which will have taken place in this instance should not occur. In any event this appeal must be dismissed. We also formally record that we allowed certain fresh evidence to be admitted without objection.

Permission to appeal

[81]We heard some submission on this at the conclusion of the hearing. It is unnecessary to give permission in all these appeals in order to achieve the objectives this court had in mind. We would then be inclined to give permission in one case in each category. Powell and Hall would seem the best examples. We would be inclined to give permission to appeal to the Supreme Court in those cases and refuse it in others, subject to receiving final written submissions, following consideration of this judgment in draft. Lord Justice Patten : Manchester City Council v Mushin

[82]In paragraph 77 of the main judgment of the Court Waller LJ has indicated what the proper determination of this appeal would have been had the Council not made the concessions he has referred to. The purpose of this supplemental judgment of the Court is to explain our reasons for dismissing the Council’s appeal in relation to the discrete issue which the trial judge was asked to decide.

[83]As explained earlier, this was a claim for possession of a property at 4, Clacton Walk, Ardwick, Manchester (“the Property”). The City Council is the owner of the Property. Mr Mushin and his wife are refugees from Somalia. They now have four children. They have been in the UK since 2002 and were given limited leave to remain in July 2006. Until then they were accommodated in various units by the National Asylum Support Service (“NASS”).

[84]Following the grant of leave to remain, NASS withdrew the accommodation it had provided and Mr Mushin and his wife applied to the Council for accommodation as homeless persons under the provisions of Part VII of the Housing Act 1996 (“HA 1996”). Pending determination of that application the Council, pursuant to s.188(1) HA 1996, granted them a joint non-secure periodic tenancy of the Property with effect from 16th August 2006.

[85]On 29th August 2006 the Council notified Mr Mushin and his wife that it was satisfied that they were homeless, that they had a priority need for accommodation and that they had not become homeless intentionally. It therefore owed them the full housing duty set out in s.193(2) HA 1996. In performance of that duty it allowed them to remain as non-secure tenants of the Property.

[86]In July 2007 Mrs Mushin applied to the Council seeking accommodation as a homeless person for herself and her children. She made allegations of domestic violence against her husband and on 13th November 2007, with the assistance of the police and the Council’s social services department, she left the Property and was moved to temporary accommodation.

[87]On 14th November 2007 Mr John Guard became the accommodation officer responsible for the Property. On 22nd November 2007 he served a notice to quit on Mr Mushin. The letter accompanying the notice indicated that proceedings for possession would follow, but did not in terms specify any reason for the termination of the tenancy.

[88]On 29th November 2007 Mr Mushin was interviewed by a homelessness assessment officer (Ms Candida Turner). Her note of the interview records that Mr Mushin was aware of the notice to quit, but said that he did not know why it had been served. Ms Turner explained to him that he had lost his accommodation because of his violence towards his wife. The Council therefore regarded him as intentionally homeless and considered that it owed him no further duty under s.193 HA 1996. A letter to this effect was sent to him following the interview. In the letter Ms Turner stated- “You have been the perpetrator of domestic violence against your wife. As such Manchester City Council has served you with a Notice to Quit your temporary accommodation at the above address, which was provided by the Homeless Families team. All duties owed to you by Manchester City Council as a homeless person under Section 193 of the Housing Act 1996 (Part VII) have ceased. No further accommodation, temporary or permanent will be made available to you.”

[89]Mr Mushin denied the allegations of domestic violence and on 7th December requested a review of the decision of 29th November. In the meantime, he remained in occupation of the Property and refused an offer of alternative accommodation made to him on 20th December because he said that he needed a house where his children could visit him.

[90]On 28th January 2008 the Council served two further notices to quit on Mr Mushin and his wife. The letter to Mr Mushin accompanying the second notice stated expressly that he had been violent towards his wife and was therefore in breach of clause 5.8 of the tenancy agreement. It also referred to arrears of rent in the sum of £605.33. The notice to quit was being served “due to your breaches of the tenancy agreement”.

[91]On 15th May 2008 the Council notified Mr Mushin that the review had been successful and that it would withdraw its earlier decision that it owed him no further duty under s.193. If possession was ordered of the Property and he required further accommodation Mr Mushin was advised to contact the Council.

[92]On 17th June 2008 the Council issued proceedings for the possession of the Property relying on the notice to quit served on 28th January 2008. The particulars of claim specified that the reasons for seeking possession were the arrears of rent and the breach of the tenancy agreement in the form of the domestic violence against Mrs Mushin.

[93]Mr Mushin filed a defence on 20th July 2008 denying that he had ever been violent towards his wife and alleging that the Council’s decision to seek possession on the grounds stated was irrational because he had never been given an opportunity to rebut the allegations of domestic violence and would be entitled to housing benefit which would cover the arrears of rent. He also pleaded that it would, for the same reasons, be disproportionate under Article 8 to evict him from the Property.

[94]After further directions, the action came on for trial before HHJ Raynor QC on 13th and 14th May 2009. The Council relied on the evidence of Mr Christopher Clayton, who worked in the Homeless Families Dispersal Accommodation Centre, and confirmed that the notice to quit served in January 2008 was based on the allegations of domestic violence and the arrears of rent. In a second witness statement Mr Clayton set out the history of various domestic disturbances from 2004 onwards when the police had been called to premises occupied by Mr and Mrs Mushin.

[95]However, at the commencement of the trial, the Judge was told by counsel that it was now agreed that the particulars of claim were wrong in the assertion that the effective notice to quit was the one served in January 2008 and that the Council now wished to rely upon the earlier notice served in November 2007. Both sides were agreed that the issue for the Judge was whether the Council’s decision to serve the November notice to quit was unlawful on public law grounds.

[96]The Judge immediately raised the point that there was no pleaded case based on the November notice and no evidence to indicate what were the reasons for its service. Mr Sabry (for the Council) then indicated to the Judge that he wished to put in a witness statement from Mr Guard setting out the reasons for the service of the earlier notice to quit. The Judge gave the Council permission to do so.

[97]In his witness statement Mr Guard confirmed that he became the accommodation worker for the Property in November 2007. He produced as an exhibit the case notes relating to Mrs Mushin for June to December 2007 which show that Mr Guard took over from Mr John Broadbent on about 14th November. The first note made by Mr Guard records that Mrs Mushin was moved to temporary accommodation on 14th November following an incident of domestic violence at the Property. Mr Guard’s note for 19th November states that:- “Informed Mushin Mohamed, still living at Clacton Walk, that he must present at Mens DA for further accommodation as he can no longer stay in HFTA property as a single man. Mushin agreed to present at Mens DA.” Mushin agreed to present at Mens DA.”

[98]The notice to quit was served on 22nd November. Mr Guard’s case note entry for that day records:- “Served Mushin with NTQ, to leave Clacton Walk by 27/12/07. Phoned Mens DA who had seen Mushin when he presented on 21/11 and as a result informed Mushin that he must present with NTQ in hand to show that he is not making himself intentionally homeless. Mushin agreed to do this.” Mushin agreed to do this.”

[99]In his witness statement Mr Guard said that he was aware that there were allegations of domestic violence against Mr Mushin but that, from memory, he believed that the notice to quit was not served for those reasons. The Council’s case both before the Judge and on this appeal was that the tenancy was terminated because Mrs Mushin and the children had been re-housed and the Property was too large for occupation by a single person.

[100]Judge Raynor was satisfied that Mr Guard was entirely honest in giving his evidence, but that his recollection as to the reason for the service of the notice to quit was unreliable. He accepted the submission made by Mr Fullwood on behalf of Mr Mushin that Mr Guard was not in a position to say why the Council had decided to serve the notice to quit. He was a junior officer who had superior line managers, none of whom was called to give evidence. No reasons were given for seeking possession in the letter accompanying the notice to quit and when Mr Mushin was interviewed by Ms Turner on 29th November, it was made clear to him that he was being evicted because of the allegations of violence to his wife. This remained one of the grounds for possession relied on in relation to the January 2008 notice and in the particulars of claim.

[101]The Judge therefore found that domestic violence and not under-occupation was the effective reason for the Council’s decision to terminate Mr Mushin’s tenancy of the Property. That required him to decide whether a decision taken on those grounds could be challenged under gateway (b) as irrational having regard to the matters pleaded in the defence. But the Council then conceded that if the decision to serve the November notice to quit was based on the grounds pleaded in the particulars of claim the procedure was flawed because Mr Mushin had not been given a proper opportunity to rebut the allegations of domestic violence or to address the question of the arrears of rent. The decision to serve the notice to quit was therefore unlawful. Accordingly, the Judge dismissed the claim for possession.

[102]In the light of the concessions made at the trial, the only potential issue on any appeal was whether there was evidence before the Judge on which he could find that the decision to serve the November notice to quit was based on the allegations of domestic violence. But the grounds of appeal included a challenge to the jurisdiction of the County Court to make the order it did having regard to the provisions of s.38(3)(a) of the County Courts Act 1984 and the contention that the Judge had, in effect, reversed the burden of proof by requiring the Council to state reasons for its decision even though the challenge was based on procedural unfairness rather than a failure to give reasons. Jacob LJ gave permission to appeal because (as he put it) the case involves “an important question as to the extent to which a court concerned with possession proceedings can go into public law questions at all”.

[103]The s.38 point and the challenge to the Judge’s decision to regard the service of the notice to quit as invalid could only be taken in this Court if we were to give the Council permission to withdraw the concessions that were made in the County Court and which form the basis upon which Judge Raynor was asked to decide the case. The respondent indicated that he would oppose permission being granted and Mr Holbrook informed us at the hearing of the appeal that he no longer sought to resile from the concessions. He was therefore limited to submitting that the Judge was wrong to reject Mr Guard’s evidence and to base his finding that domestic violence was the reason for serving the first notice to quit either on what was said in the interview with Ms Turner or on the particulars of claim.

[104]A challenge of this kind can only succeed if it can be said that there was in reality no evidence available to the Judge on which he could properly have based the finding which he made. We reject that. Mr Guard’s evidence was that his recollection was that the notice was served because Mr Mushin could not occupy the Property as a single man. But against this was the case history in which allegations of domestic violence had been made over a long period of time culminating in the events of 13th November. Mr Mushin was told in terms that he was being evicted due to the alleged violence against his wife and the question of whether the Council continued to owe him any housing duty as a homeless person arose specifically in this context. When the second notice to quit was served on Mr Mushin the Council again expressly stated that it was seeking possession on grounds of arrears of rent and domestic violence.

[105]In these circumstances, the Judge had to decide whether the reasons for seeking possession had somehow changed between the service of the first and the second notices or whether Mr Guard’s recollection or understanding as to the reasons for seeking possession in November 2007 was inaccurate. Although Mr Holbrook has made a number of serious forensic points about the weight to be attached to various pieces of evidence, we are unpersuaded that the Judge was not entitled to come to the conclusion which he did. It seems to us that it was open to him to infer from what was said at the interview on 29th November and from the Council’s initial decision to regard its duty under s.193 as at an end that the reason for serving the notice was Mr Mushin’s allegedly violent conduct towards his wife and the breach of the tenancy agreement which that involved. For those reasons, we would dismiss this appeal.

order

it had no discretion to do otherwise. In particular, he held that the County Court has no jurisdiction to entertain a public law defence in such proceedings. Its only power would be to adjourn the proceedings to enable an application to be made for Judicial Review if such a point was seriously arguable in the traditional way. It was part of the reasoning in McLellan for holding that the introductory tenancy scheme was Article 6 and Article 8 compliant that Judicial Review was available in the way contemplated by Sir John Knox.

Salford City Council v Mullen & Ors [2010] EWCA Civ 336

Background

THE RELEVANT STATUTORY REGIMES

Homelessness (the Powell v. Hounslow and Manchester v. Mushin appeals)

The demoted tenancy regime

THE CASES SUMMARISED

Manchester v. Mushin (homelessness accommodation)

Hall v. Leeds (introductory tenancy)

Frisby v. Birmingham City Council (introductory tenancy)

Mullen v. Salford City Council (introductory tenancy)

ISSUES

The introductory tenancy regime

Does gateway (b) contemplate a full ECHR proportionality review?

(b) , he concluded at [52]-[55]:

CONCLUSIONS IN THE PARTICULAR APPEALS

Manchester v Mushin

Hall v Leeds

Frisby v Birmingham

Permission to appeal

order

Cited in 4 later judgments