Newport City Council McDonagh & Ors [2021] EW Misc 9 (CC) (03 June 2021) [2021] EW Misc 9 (CC)

“Applicants who have a demonstrable aversion to bricks and mortar accommodation and …”

“67. The enquiries that my colleagues and I made included information on the members of the McDonagh family that have been named in Welfare Assessments … as well as those who have been named as parties and those who have filed defences to these proceedings. 68. I weighed up all the facts known to the Council. This included the personal circumstances of the Defendants. I took into account that they had entered and remained on the Ellen Ridge Site illegally. I considered that Patrick, Kathleen, Edward McDonagh and Ms Shannon Ward had lived in bricks and mortar accommodation at various times and did not meet the criteria of demonstrating an aversion to bricks and mortar accommodation in the Site Allocation Policy to be allocated a pitch at the Ellen Ridge Site, for the reasons I have set out in the statement, and that they could be housed in bricks and mortar accommodation. … I took into account the medical circumstances of each of them. I also considered that if they were evicted from the Ellen Ridge Site, it is likely that at least some of them may set up another unauthorised encampment in another part of Newport. 69. I took into account the assessments of the children’s needs by Children and Families Services and the recommendation that it would be in the best interests of the children to be allowed to remain on the Ellen Ridge Site but if this was not possible an alternative permanent residence should be identified. The Social Workers did not feel that eviction would pose any immediate child protection risks. I gave the information contained in these children assessments substantial weight when considering all the factors and circumstances. On the other hand, I considered the needs of the children of families who met the Council’s Site Allocation Policy for a pitch on the Ellen Ridge Site and were not able to take up occupation due to the Defendants’ illegal encampment at the site. 70. 1 took into account the fact that the Ellen Ridge Site is the only socially rented Gypsy and Traveller site that the Council has in its local authority area. I also considered that the Council had a waiting list of 18 families who met the criteria for pitches at the Ellen Ridge Site ... 71. I also took into account the problems encountered at the Ellen Ridge Site with the Defendants in terms of the evidence of criminal damage and allegations of noise nuisance and anti-social behaviour with complaints to the Council and Police by local residents. 72. I concluded that the Defendants could not be allowed to remain on the Ellen Ridge Site and that, after considering the alternatives, eviction was a reasonable, fair and proportionate course of action and therefore it was appropriate to continue with possession proceedings.”

“• The encampment should not be tolerated in its current location. • There is currently no evidence that the McDonagh family have housing needs that could not be met in bricks and mortar accommodation so there is no necessity [to] source an alternative site for them. • Possession action in this case is reasonable and justified.”

“the past few weeks have been really difficult as the noise coming from the site has been so loud it has left me unable to sleep. This has been a mix of noise from fighting late at night into early hours of the morning and loud music.”

“another night of music, shouting, fighting, car horn beeping”

“[E]ven though there has been no bad faith, a public authority’s exercise of its statutory powers may properly be challenged before the court if it can be shown, the burden being on the challenger, that the authority has, as a material factor in reaching its decision, taken into account a factor which as a matter of law should not have been taken into account or has failed to take into account a factor which should have been taken into account. To that extent a local authority, as landlord, is under a stricter obligation than a private landlord, in a case where the tenancy is not subject to the Rent Acts. But, if such a challenge be made, it is for the tenant to particularise the relevant consideration or considerations alleged to have been taken into account or omitted, as the case may be, and to prove that erroneous taking into account or that erroneous omission, which constitutes the so-called ‘abuse of the powers.’ In the present case, no such consideration was specified. It is said that it ought to be inferred. Such an inference may be justified, even though the precise consideration, erroneously taken into account or omitted, cannot be identified or proved. How that may arise is shown, again, in Lord Greene MR’s judgment in the Wednesbury case, at p. 230: ‘It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere. That, I think, is quite right: but to prove a case of that kind would require something overwhelming, and, in this case, the facts do not come anywhere near anything of that kind.’”

“As the question whether the abuse, or excessive use, of statutory powers could be a defence to a claim for possession of a dwelling-house had never been argued in the Bristol case [ Bristol District Council v. Clark [1975] 1 WLR 1443], it was open to Mr. Hidden to argue, as indeed he did, that such abuse or use could not be a defence to a claim for possession. He had to concede in argument that the validity of a notice to quit might be put in question by evidence of corruption, as, for example, if it was proved that a housing manager had been bribed to get rid of a sitting tenant in favour of an applicant for a council house. He submitted that when a tenant in a possession case raised such an issue, the trial judge should adjourn the proceedings to enable the tenant either to apply for a prerogative order or bring an action for a declaration. I find difficulty in envisaging the form of a prerogative order in such circumstances. The only order which would make sense would be one of prohibition against continuing with the claim. Why the tenant should have to go to the trouble of getting the Divisional Court to stop the proceedings, I do not understand. If on proof of certain facts the claim for possession should fail, the court of trial is the proper tribunal to say so. If corruption, which would be a form of abuse of statutory powers, could affect the validity of a notice to quit, I can see no reason why, by way of defence to a claim for possession, the tenant cannot plead that the notice served on him was not a valid one. In my judgment the abuse or excessive use of statutory powers by a local authority acting as a housing authority can provide a defence for a council tenant against a claim for possession.”

“[T]he arguments for protecting public authorities against unmeritorious or dilatory challenges to their decisions have to be set against the arguments for preserving the ordinary rights of private citizens to defend themselves against unfounded claims. It would in my opinion be a very strange use of language to describe the respondent’s behaviour in relation to this litigation as an abuse or misuse by him of the process of the court. He did not select the procedure to be adopted. He is merely seeking to defend proceedings brought against him by the appellants. In so doing he is seeking only to exercise the ordinary right of any individual to defend an action against him on the ground that he is not liable for the whole sum claimed by the plaintiff. Moreover he puts forward his defence as a matter of right, whereas in an application for judicial review, success would require an exercise of the court’s discretion in his favour. Apart from the provisions of Order 53 and section 31 of the Supreme Court Act 1981 , he would certainly be entitled to defend the action on the ground that the plaintiff's claim arises from a resolution which (on his view) is invalid: see for example Cannock Chase District Council v. Kelly [1978] 1 WLR 1 , which was decided in July 1977, a few months before Order 53 came into force (as it did in December 1977). I find it impossible to accept that the right to challenge the decision of a local authority in course of defending an action for non-payment can have been swept away by Order 53, which was directed to introducing a procedural reform. As my noble and learned friend Lord Scarman said in Reg. v. Inland Revenue Commissioners, Ex parte Federation of Self Employed and Small Businesses Ltd. [1982] AC 617 , 647G, ‘The new R.S.C., Ord. 53 is a procedural reform of great importance in the field of public law, but it does not - indeed, cannot - either extend or diminish the substantive law. Its function is limited to ensuring “ ubi jus, ibi remedium .”’ Lord Wilberforce spoke to the same effect at p. 631A. Nor, in my opinion, did section 31 of the Supreme Court Act 1981 which refers only to ‘an application’ for judicial review have the effect of limiting the rights of a defendant sub silentio . I would adopt the words of Viscount Simonds in Pyx Granite Co. Ltd v. Ministry of Housing and Local Government [1960] AC 260 , 286, as follows: ‘It is a principle not by any means to be whittled down that the subject’s recourse to Her Majesty's courts for the determination of his rights is not to be excluded except by clear words.’ The argument of the appellants in the present case would be directly in conflict with that observation. If the public interest requires that persons should not be entitled to defend actions brought against them by public authorities, where the defence rests on a challenge to a decision by the public authority, then it is for Parliament to change the law.”

“ The continuing breach of duty by the plaintiffs under section 6 of the Act of 1968 to ‘gipsies residing in or resorting to’ the area of West Glamorgan does not in law preclude the right of the plaintiffs to recover possession of any land occupied by the trespassing gipsies, but that does not remove that continuing breach of duty from the balance or reduce its weight as a factor. The reasonable council in the view of the law is required to recognise its own breach of legal duty for what it is and to recognise the consequences of that breach of legal duty for what they are. The reasonable council, accordingly, was not in my judgment free to treat the interference with the intended reclamation and redevelopment of this site, for such period of time as would have resulted from the holding up of complete eviction from the entire site while temporary accommodation was provided elsewhere, as outweighing the effects of eviction on the gipsies then present and on those to whom the impact of trespassing by gipsies would necessarily be transferred. The decision is only explicable to me as one made by a council which was either not thinking of its powers and duties under law or was by some error mistaken as to the nature and extent of those powers and duties. ”

“It has been common ground that if in the second appeal the order of Kennedy J is upheld by this court then the proceedings for possession are aborted and no separate issues arise in the first appeal save as to costs. It is also common ground that if the order of Kennedy J is set aside then the first appeal must be allowed and the original order for possession restored.”

“The decision of this court in West Glamorgan County Council v Rafferty [1987] 1 WLR 457 binds us to hold that (a) a decision by a local authority to seek to evict squatters can be quashed in judicial review proceedings on the grounds that it is Wednesbury unreasonable to apply for a possession order when the council is in continuing breach of its obligation to provide caravan sites for gipsies, (b) if the decision is quashed in such proceedings, any eviction proceedings based on the decision would be abortive, and (c) no pre-conditions for the validity of a new decision to seek an eviction order could be laid down. What the West Glamorgan case does not decide is whether the decision of the local authority can be attacked on the eviction proceedings themselves, as contrasted with separate judicial review proceedings. That issue was decided by Scott J in Waverley Borough Council v Hilden [1988] 1 WLR 246 on a consideration of the West Glamorgan case [1987] 1 WLR 457 and Wandsworth London Borough Council v Winder [1985] AC 461 . His conclusion was that the decision falls to be challenged by judicial review and not otherwise. I agree with that conclusion, but as his decision is not binding on this court, I should now give my reasons.”

“[T]here is a fundamental difference between this case and Winder’s case. Mr Winder was seeking to raise a true defence. He was saying that he had a valid tenancy, that he did not owe any rent and accordingly was not liable to eviction. It was a defence on the merits. In the present case the defendants do not allege any right to occupy the land and accordingly do not deny that they are liable to be evicted. They do not suggest that they have any defence on the merits. What they say is quite different, namely, that the council is not entitled to enforce its rights. It is not entitled to come to the court to seek an eviction order. If one can imagine a private company whose memorandum and articles limited its powers to acting in a way which was Wednesbury reasonable and which sought to evict the defendants from its land in similar circumstances, the defendants would be seeking to strike out the action for want of authority on the part of the plaintiff to bring the action. When a defendant is seeking, in effect, to strike out an action on the basis of a public law right, he should, in my judgment, proceed by way of an application for judicial review, thus ensuring that the matter is dealt with speedily as a preliminary point and in a manner which gives the public authority and the public which it serves the protections enshrined in the judicial review procedure.”

“In the present case the defendants do not allege any right to occupy the land and accordingly do not deny that they are liable to be evicted. They do not suggest that they have any defence on the merits. What they say is quite different, namely, that the council is not entitled to enforce its rights. It is not entitled to come to the court to seek an eviction order.”

“34. Since at least the early 1970s, and well before the development of the modern judicial review procedure, battle had been drawn on this issue between public authorities, and those championing the rights of the disadvantaged, such as gipsies and the homeless. The fortunes of the two sides have fluctuated. The introduction of judicial review opened the way for a new line of argument. Authorities contended that it was an abuse of process to use any other procedure than judicial review to challenge local authority decisions. This argument was rejected in 1985 by the House in Wandsworth . This decision appeared to establish the right of defendants in the county court to use any available legal weapons, public or private. 35. In 1988 the pendulum began to swing the other way, with the impetus of two cases: Waverley Borough Council v Hilden [1988] 1 WLR 246 (Scott J), and Avon County Council v Buscott [1988] QB 656 CA. Both concerned local authority proceedings against gipsies: the former to enforce planning restrictions against gipsies developing their own land; the latter to seek possession against squatters on the local authority's land. In both cases, Wandsworth was held not to apply to a challenge to the authority’s decision to commence proceedings. In Avon Lord Donaldson MR explained the distinction: ‘There is a fundamental difference between this case and Winder’s case. Mr Winder was seeking to raise a true defence. He was saying that he had a valid tenancy, that he did not owe any rent and accordingly was not liable to eviction. It was a defence on the merits. In the present case the defendants do not allege any right to occupy the land and accordingly do not deny that they are liable to be evicted. They do not suggest that they have any defence on the merits. What they say is quite different, namely, that the council is not entitled to enforce its rights. It is not entitled to come to the court to enforce an eviction order.’ (p 663) The distinction was not without its critics. Wade & Forsyth Administrative Law (9th Ed) commented that ‘it seems impossible to draw any logical line’ between Avon and Wandsworth (p 671). It has not always been consistently applied (see, for example, Rhondda Cynnon Taff County Borough Council v Watkins [2003] EWCA Civ 129 ; [2003] 1 WLR 1864 ). 36. That whole area of controversy has now apparently been swept aside by the House without further ado. All seem to have accepted it as settled law under Wandsworth that ‘conventional’ judicial review grounds can be raised by way of defence to possession proceedings in the county court. Lord Hope said simply: ‘A defendant has the right to contend in his defence that the decision of a public authority to recover possession was one which no reasonable person could consider justifiable, as Lord Fraser of Tullybelton explained in Wandsworth …’ (para 86) Mr Underwood realistically did not suggest otherwise. Indeed, from an authority’s point of view, once it is accepted that its decision is in principle open to challenge on judicial review grounds, there seems every advantage in those grounds being considered in the county court. As Lord Hope said in the same paragraph: ‘It is preferable, wherever possible, that the matter should be dealt with in the county court, rather than by adjourning the proceedings to enable the defendant to apply in the High Court for permission for judicial review of the decision to apply for the possession order.’ Furthermore, in contrast to the position in 1988, and at least since the Housing Act 1996, the legal issues are no different in kind from those regularly dealt with by county court judges under its housing jurisdiction.”

“8. In Kay and others v Lambeth London Borough Council [2006] UKHL 10 , [2006] 2 AC 465 (which I shall refer to from now on as Kay ) it was held by the majority, affirming Qazi , that the county courts, when faced with a defence to a claim to possession by a public authority landlord which is based on article 8, should proceed on the assumption that domestic law strikes a fair balance and is compatible with the occupier’s Convention rights. But it was recognised that there might be cases of a special and unusual kind, of which Connors was an example, where it would be incompatible with article 8 for the occupier not to be permitted to challenge the factual allegations that were made against him which were the basis for the claim for a possession order. If the legal framework denied him that opportunity it would fall to be regarded as incompatible with the Convention right: see paras 108, 168 and 184-185. 9. In Kay , para 110, I said that where domestic law provides for personal circumstances to be taken into account, as in a case where the statutory test is whether it would be reasonable to make a possession order, then a fair opportunity must be given for the arguments in favour of the occupier to be presented. But if the requirements of the law have been established and the right to recover possession of the public authority landlord is unqualified, the only situations in which it would be open to the court to refrain from proceeding to summary judgment and making the possession order are these: ‘(a) if a seriously arguable point is raised that the law which enables the court to make the possession order is incompatible with article 8, the county court in the exercise of its jurisdiction under the Human Rights Act 1998 should deal with the argument in one or other of two ways: (i) by giving effect to the law, so far as it is possible for it to do so under section 3, in a way that is compatible with article 8, or (ii) by adjourning the proceedings to enable the compatibility issue to be dealt with in the High Court; (b) 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, he should be permitted to do this provided again that the point is seriously arguable: Wandsworth London Borough Council v Winder [1985] AC 461 .’ I added that, as the common law as explained in Wandsworth Borough Council v Winder was compatible with article 8, it provided an additional safeguard. Lord Scott of Foscote (para 174), Baroness Hale of Richmond (para 192) and Lord Brown of Eaton-under-Heywood (para 212) agreed with what I said in that paragraph.” “44. The other part of para 110, referred to by the Court of Appeal [in Doherty ] as gateway (b), was designed to leave open the possibility of a challenge on public law grounds that the public authority’s decision to bring the claim was so unreasonable as to be unlawful. Its purpose was also to make it clear that this objection could be advanced as a defence in the county court. …” “52. As I said earlier, the speeches in Kay show that the route indicated by this gateway [i.e. Gateway (b) in para 110 of Kay ] is limited to what is conveniently described as conventional judicial review. In para 60, for example, Lord Nicholls indicated that he had in mind a challenge in accordance with Wandsworth Borough Council v Winder [1985] AC 461 on grounds which, he said, had nothing to do with the Human Rights Act 1998. In para 208 Lord Brown too acknowledged that this was a quite different basis from that which the Act provides upon which a public authority’s claim for possession could be challenged. In para 110 of my own speech I described this as a challenge that would be made at common law, on the ground that the decision was one that no reasonable person would consider justifiable. In para 114 I said that the grounds on which the decision to claim possession could be judicially reviewed were whether it was arbitrary, unreasonable or disproportionate. 53. Gateway (b) then asserts that in possession cases brought by a public authority a defence which takes the form of a challenge to its decision to seek possession may be available. The court is not bound to make the order if the decision to seek it can be challenged on the ground that it was an improper exercise of the respondent’s powers. In this respect the two routes, or ‘gateways’, may be said to work together to address the incompatibility due to the lack of a procedural safeguard, which is the fundamental point that is at issue in this case. Gateway (a) addresses the question whether the court can read and give effect to the statutes in a way that is compatible with article 8. If it cannot do this, 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. The fact that it is available as a defence seems to me to strengthen the argument, should it be needed, that it also provides him with the protection which he seeks against an infringement of his Convention right. 54. The Court of Appeal said in para 61 that it could see no purpose in remitting the case to the judge. I disagree, with respect, with this assessment. In para 43 of his judgment the judge said that it seemed to him that in this case judicial review would be able to check the fairness and legality of the respondent's decision. Now that it is clear that arguments of that kind may be presented by way of a defence to the proceedings under gateway (b), I think that he should be given the opportunity to carry out that exercise. Any factual disputes that may exist between the parties as to the facts on the basis of which the decision was taken will be capable of being resolved by him too. Lord Brown's observations in para 210 of his opinion in Kay add a further point that is relevant to this issue. The site had been occupied as their home by the appellant and his family for about 17 years when the notice to quit was served. So it could be argued that it was unfair for the respondent to be able to claim possession without being required to make good the reasons that it gave in its own statement of claim for doing so. 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 which 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. The further point to which Lord Brown referred will have a part to play in that assessment.”

“23. Where a (county) court is asked to make an order for possession of someone’s home by a local authority, the court has the power, when a defence based on art. 8 of the Convention is raised, to assess the proportionality of making the order and, in making that assessment, to resolve any relevant dispute of fact notwithstanding that the defendant has no domestic right to remain.” “30. For my part I can see no practical reason for distinguishing between the position of a defendant who wishes to rely on a defence that in exercising a particular function the local authority did not have regard to the rights of the defendant and his family under art. 8 of the Convention (the appellant’s pleaded case here) and that of a defendant who wishes to rely on the failure of a local authority in precisely the same context to comply with its duty under s.11 of the 2004 Act. The respondent raised no principled argument for drawing such a distinction, resting principally on the way the matter was put in Winder . As I have said, the law has developed since then. Further, to my mind it makes perfect sense for issues about the wellbeing of children caught up in possession proceedings to be dealt with at the same time and before the same tribunal whether they are raised by reference to art. 8 or s.11. In either case, the same or similar sensitive factual questions are likely to arise which the process of judicial review is not well adapted to determining, and which are better left to the county court. Certainly, it was not suggested to us that if there were to be a real issue about the wellbeing of children who were at risk of being evicted, the appropriate venue for the determination of those issues would be the Administrative Court.”

“Although the action or inaction of a local authority is clearly susceptible to judicial review where they have misconstrued the Act, or abused their powers or otherwise acted perversely, I think that great restraint should be exercised in giving leave to proceed by judicial review. The plight of the homeless is a desperate one, and the plight of the applicants in the present case commands the deepest sympathy. But it is not, in my opinion, appropriate that the remedy of judicial review, which is a discretionary remedy, should be made use of to monitor the actions of local authorities under the Act save in the exceptional case. The ground upon which the courts will review the exercise of an administrative discretion is abuse of power — e.g. bad faith, a mistake in construing the limits of the power, a procedural irregularity, or unreasonableness in the Wednesbury sense - unreasonableness verging on an absurdity: see the speech of Lord Scarman in R v Secretary of State for the Environment, ex parte Nottinghamshire County Council [1986) AC 240 , 247-248. Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely.”

“We do not challenge the decision not to allocate. We do not claim a right to a pitch on the site. We challenge the response to the unlawful encampment.”

“The Council is under a section 103 duty to provide such-and-such a number of pitches; it has failed to provide them; I satisfy the criteria of entitlement for a pitch; the reason why I have not been allocated a pitch is because the Council has failed to provide the number of pitches it is bound to provide.”

“41. Effectively, if an unauthorised encampment arises and there are no alternative authorised pitches in the area, local authorities have three clear paths relating to how they can resolve the encampment. Each option should be carefully considered: • Path 1 - To seek and obtain possession of the occupied site (eviction proceedings). • Path 2 - To ‘tolerate’ the Gypsy or Traveller occupiers, if only for a short time, until an alternative site can be found or the occupiers move on voluntarily. • Path 3 - To find an alternative site, if only on a temporary basis, and offer the Gypsy or Traveller occupiers the chance to move onto it. 42. Deciding which path to take is about finding a critical balance between considering the welfare and human rights of Gypsies and Travellers, whilst safeguarding the human rights of landowners, occupiers and the public, and protecting them from health and safety hazards or public nuisance. Each encampment should be dealt with on a case-by-case basis.”

“We would not look to find land for a tolerated encampment, because they [the defendants] have not shown that they need it.”

“14. The Claimant failed, despite being required as a matter of public law derived from Article 3 of the UNCRC and or under section 11(2) of the Children's (sic) Act 2004 to carry out a lawful assessment of the relevant children’s principal needs, merely counting that the decision to evict concerns fifteen children. 15. The Claimant failed as required by Article 3 of the UNCRC, (a) to identify, given those assessed needs, which outcome was in the children’s best interests; and (b) to attach substantial weight to achieving the outcome that was in the children's best interests. 16. The Claimant wrongly failed to ensure that no other matter was treated as having inherently more importance than achieving the outcome that was in the children’s best interests.”

“(1) This section applies to each of the following— (a) a local authority in Wales; (2) Each person and body to whom this section applies must make arrangements for ensuring that— (a) their functions are discharged having regard to the need to safeguard and promote the welfare of children …”

“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

“23. For our purposes the most relevant national and international obligation of the United Kingdom is contained in article 3.1 of the UNCRC: ‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.’ This is a binding obligation in international law, and the spirit, if not the precise language, has also been translated into our national law. Section 11 of the Children Act 2004places a duty upon a wide range of public bodies to carry out their functions having regard to the need to safeguard and promote the welfare of children. … 24 … [T]his duty applies, not only to how children are looked after in this country while decisions about immigration, asylum, deportation or removal are being made, but also to the decisions themselves. This means that any decision which is taken without having regard to the need to safeguard and promote the welfare of any children involved will not be ‘in accordance with the law’ for the purpose of article 8.2. Both the Secretary of State and the tribunal will therefore have to address this in their decisions. 25 Further, it is clear from the recent jurisprudence that the Strasbourg court will expect national authorities to apply article 3.1 of UNCRC and treat the best interests of a child as ‘a primary consideration’. Of course, despite the looseness with which these terms are sometimes used, ‘a primary consideration’ is not the same as ‘the primary consideration’, still less as ‘the paramount consideration’. … However, questions with respect to the upbringing of a child must be distinguished from other decisions which may affect them. The UNHCR, in its Guidelines on Determining the Best Interests of the Child (May 2008), explains the matter neatly, at para 1.1: ‘The term “best interests” broadly describes the well-being of a child ... The CRC neither offers a precise definition, nor explicitly outlines common factors of the best interests of the child, but stipulates that: the best interests must be the determining factor for specific actions, notably adoption (article 21) and separation of a child from parents against their will: article 9; the best interests must be a primary (but not the sole) consideration for all other actions affecting children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies see: article 3.’ This seems to me accurately to distinguish between decisions which directly affect the child’s upbringing, such as the parent or other person with whom she is to live, and decisions which may affect her more indirectly, such as decisions about where one or both of her parents are to live. Article 9 of UNCRC, for example, draws a distinction between the compulsory separation of a child from her parents, which must be necessary in her best interests, and the separation of a parent from his child, for example, by detention, imprisonment, exile, deportation or even death. 26 Nevertheless, even in those decisions, the best interests of the child must be a primary consideration. As Mason CJ and Deane J put it in the case of Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 292 in the High Court of Australia: ‘A decision-maker with an eye to the principle enshrined in the Convention would be looking to the best interests of the children as a primary consideration, asking whether the force of any other consideration outweighed it.’ As the Federal Court of Australia further explained in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, para 32: ‘[The tribunal] was required to identify what the best interests of Mr Wan’s children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.’ This did not mean (as it would do in other contexts) that identifying their best interests would lead inexorably to a decision in conformity with those interests. Provided that the tribunal did not treat any other consideration as inherently more significant than the best interests of the children, it could conclude that the strength of the other considerations outweighed them. The important thing, therefore, is to consider those best interests first. That seems, with respect, to be the correct approach to these decisions in this country as well as in Australia.”

“26. For present purposes it also important to note the following. 27. First, tenancies granted under Part VII of the 1996 Act, including to families with dependent children, are not secure tenancies. A local authority is not therefore required under domestic law to establish any particular ground for the termination of a tenancy, when seeking possession from a tenant on whom a Notice to Quit has been served. There are clear policy reasons for this. The homelessness regime provides the local authority with the flexibility in the management of its housing stock that it needs if it is to respond quickly and responsibly to the demands that the pressing social problem of homelessness give rise to, and the housing stock from which the local authority provides this temporary accommodation may not be owned by the local authority but will have been obtained from a housing association or a private landlord … 28. Secondly, children are expressly catered for in the legislative scheme in Part VII in two respects. At the beginning of the process the presence of a dependent child gives rise to the priority need and the provision of temporary accommodation. At the end of the process that presence is catered for by section 213A of the 1996 Act. This provides a link or bridge between the exercise of local housing authority functions under Part VII and the functions of local authority social services under the 1989 Act. In the normal course, if a parent, who is in temporary accommodation, is not owed the main housing duty under Part VII (the situation which is posited here) then a Children Act assessment will have to be undertaken of any dependent child in any event. 29. Thirdly, as can be seen, by its structure, the legislative scheme in Part VII provides for periods of ‘temporary deferral’ by default, between the making of the section 184 decision, and the point at which a Notice to Quit may be served; as do legal proceedings in the event they are taken, as they were here. 30. Fourthly, both the local authority seeking possession of temporary accommodation provided under Part VII, and the court hearing any subsequent claim for possession are required to act compatibly with an occupier’s rights under article 8 of the Convention: see Manchester County Council v Pinnock [2010] UKSC 45 ; [2011] 2 AC 104 ; [2011] HLR 7 and Hounslow LBC v Powell . So is a court which conducts a review in accordance with section 204 of the 1996 Act: see R (on the applications of N) v London Borough of Newham and London Borough of Lewisham [2014] UKSC 62 ; [2014] 3 WLR 1548 ; [2015] HLR 6 . An adjudication of proportionality in these respects is therefore accommodated within the existing framework of the legislative and court procedures. 31. Fifthly, the ‘best interests’ or wellbeing of the child may be relevant to the proportionality of interference with rights under article 8 of the Convention as explained in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 ; [2011] 2 AC 166 … 32. The general approach in such cases derives from Article 3(1) of the United Nations Convention on the Rights of the Child 1989 which says: ‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, best interests of the child shall be a primary consideration.’ The wellbeing of a child is not necessarily determinative and may be outweighed by other factors, but it must be considered first, and is a primary consideration where the decision directly affects the child’s upbringing: ZH (Tanzania) Baroness Hale of Richmond JSC at paras 25 and 33. 33. In Collins Richards LJ did not think section 11 added materially to the article 8 analysis in any event (see para 14); and approved the observation of Hickinbottom J in Stevens v Secretary of State for Communities and Local Government [2013] EWHC 792 (Admin) ; [2013] JPL 1383 , that it will not usually be necessary for the decision-maker to make their own inquiries as to evidence that might support the child’s best interests: see para 16. 34. Sixthly, if a court is satisfied that eviction would be disproportionate, either on a review or in possession proceedings, it can prohibit the eviction for as long as that is the case: see Manchester City Council v Pinnock , Lord Neuberger MR paras 45 and 64; and Hounslow London Borough Council v Powell , Lord Hope of Craighead DPSC paras 62 and 63. 35. Seventhly, where an applicant has no right under domestic law to remain in possession of a property, the threshold for raising an arguable case of a lack of proportionality is a high one … 36. Eighthly, the legitimate aims within the scope of article 8.2 of the Convention, for the purposes of determining proportionality, include the vindication of the local authority’s rights of ownership and enabling it to comply with its public duty in relation to the allocation and management of housing stock: Manchester County Council v Pinnock Lord Neuberger MR at 51 and Hounslow LBC v Powell Lord Hope of Craighead DPSC at 36. 37. Ninthly, the court will deal with the matter summarily unless it is seriously arguable; the onus will be on the defendant to raise the issue, and there is no need for the structured approach to the issue of proportionality which might be applicable in other contexts, such as immigration: indeed such a structured approach would be wholly inappropriate in the context of a statutory regime that has been deliberately designed by Parliament, for sound reasons of public policy, so as not to provide an occupier with a secure tenancy: Manchester County Council v Pinnock , Lord Neuberger MR at paras 54 and 61 and Hounslow v Powell , Lord Hope of Craighead at para 41.”

“66. Quite apart from the difficulty of analysing what the section 11 duty obliges local authorities to do, when the appellants’ case is detached from the specifics of any particular function they carry out, and looking at the matter more generally, it would be wrong in my judgment to construe section 11 of the 2004 Act so that it changes the nature or scope of the functions to which it relates … 67. Further, as in Collins , it is difficult to see how the section 11(2) duty adds anything material to the article 8 analysis. If it does so, it seems to me, more as a matter of form, rather than substance. 68. Standing back for a moment, if the respondents were required to engage in an assessment of children in homelessness cases under Part VII as Mr Knafler suggests, this would be extraordinarily burdensome in terms of cost and resources and - in the overwhelming number of cases - simply futile. As outlined above, the law already caters for the position of children, it allows for the assessment of proportionality at various stages, it has built into it various periods when any particular facts can be raised which might (in the most exceptional case) bear on the proportionality of an eviction, and mandate a temporary halt of the process, and the legislation, together with the procedural protections available to protect the article 8 rights engaged, provide for such matters to be independently assessed by a court. Hard pressed social workers would be diverted from their vital child protection work in relation to children in need as defined by the legislation, to conduct thousands of child assessments on the off chance that there were exceptional facts, of which the local authority which had already conducted a detailed review of the parent’s circumstances was, as yet, unaware, and the parent did not think to raise with the local authority him or herself. If the appellants’ arguments are correct, then one child might be the subject of any number of such assessments (presumably these would then be required further back into the process). There is moreover an existing duty on the part of local authorities to conduct a Children Act assessment in respect of any child in need, whose parent is likely to lose their accommodation; and local housing authorities and children’s services/departments are under a duty to co-operate in any event: see section 10 of the 2004 Act and section 27 of the 1989 Act.”

“70. If however, contrary to my view, there was a duty to conduct an assessment as the appellants assert, I do not think these facts show any basis for interfering with the possession orders that were made, as there is no link between the making of those orders, and a failure to conduct such an assessment. I t would follow that a failure to comply with such a duty did not give rise to a defence to the claims in any event: see Wandsworth LBC v Winder [1985] AC 461 HL at 509E-F and London Borough of Hackney v Lambourne (1993) 25 HLR 172, at 181.”

“30. … As the hearing developed it seemed to me that the breach of the s.11 duty, as the judge found it to be, had no relevance on the facts to the substantive matter at issue in these proceedings, namely whether an order for possession should be made or not. It is notable for example, that no mention was made of the position of the appellant’s children in his skeleton argument, and we were referred to no material about them during the course of argument. This lacuna in the appellant’s case was at one with the position in the pleaded defence where the appellant failed to particularise how, if at all, consideration of the children's welfare would have made any difference to the ultimate outcome of this claim. As for the evidence before the judge, the court made no finding as to the children having any unusual or compelling circumstances beyond the normal and understandable difficulties arising from the uncertainty over the future of their home. Those difficulties however, unfortunate as they were, could not provide a justification for allowing this family with no private law right to remain in the bungalow, to stay there after the ending of the service occupancy, even on a temporary basis; or for depriving the respondent of its otherwise unanswerable property rights. There was nothing in other words that supported even faintly, even at the pleadings stage, a case that any consideration of the position of the children when the notice to quit was served would have made any difference to the outcome of the action for possession. In the light of these matters the s.11 issue might have been disposed of on a summary basis. Further, as Mr Lane pointed out, the appellant did not seriously suggest before the judge that art.8 on its own imposed any bar to possession in this claim, and in those circumstances it could not be suggested that the corresponding defence refused by reference to s.11 of the 2004 Act had been made out. 31. Thus the reality of the position seems to me to be that the issue raised in relation to s.11 was in its own way as theoretical as that raised in relation to the Public Sector Equality Duty under s.149 of the 2010 Act. It had no direct or relevant application to this case. As Mr Vanhegan accepted in argument, the most the appellant could have hoped for, even had—contrary to realities—his defence raised by reference to s.11 been successful, was a temporary reprieve; as it is, these legal proceedings have meant he, and his family, have remained in the bungalow for nearly three years since his licence to occupy was terminated.”

“ Right to respect for private and family life 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

“ Prohibition of discrimination The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

“22. The principles to be applied are clear. First, it is a defence to a claim by a local authority for possession of a defendant’s home that the possession is not necessary in a democratic society within Article 8(2) , that is to say it would be disproportionate in all the circumstances. An order for possession in such a case would be an infringement of the defendant’s right under Article 8 to respect for his or her home and so unlawful within the Human Rights Act 1998 s. 6(1). 23. Secondly, the test is whether the eviction is a proportionate means of achieving a legitimate aim: Pinnock at [52]. The Supreme Court said there that it would prefer to express the position in that way rather than use the yardstick of confining an arguable Article 8 defence to “very exceptional cases” as mentioned by Lord Bingham in Kay v Lambeth BC [2006] UKHL 10 , 2 AC 465 , at [29] and endorsed by the European Court in McCann v UK (2008) 47 EHRR 913 at [54] and Kay v UK [2011] HLR 13 at [73]. 24. Thirdly, it is nevertheless clear that the threshold for establishing an arguable case that a local authority is acting disproportionately and so in breach of Article 8 where re-possession would otherwise be lawful is a high one and will be met in only a small proportion of cases: Hounslow BC v Powell [2011] UKSC 8 , [2011] 2 AC 186 , at [35] (Lord Hope). The circumstances will have to be exceptional to substantiate an Article 8 defence: Powell at [92] (Lord Phillips), Corby BC v Scott [2012] EWCA Civ 276 , [2012] HLR 23 at [35] (Lord Neuberger MR)). I… 25. Fourthly, the reasons why the threshold is so high lie in the public policy and public benefit inherent in the functions of the housing authority in dealing with its housing stock, a precious and limited public resource. Local authorities, like other social landlords, hold their housing stock for the benefit of the whole community and they are best equipped, certainly better equipped than the courts, to make management decisions about the way such stock should be administered: Powell at [35]. … 26. Fifthly, that is why the fact that a local authority has a legal right to possession, aside from Article 8 , and is to be assumed to be acting in accordance with its duties (in the absence of cogent evidence to the contrary), will be a strong factor in support of the proportionality of making an order for possession without the need for explanation or justification by the local authority: Pinnock at [53] and Powell at [37] (Lord Hope). It will, of course, always be open to a local authority to adduce evidence of particularly strong or unusual reasons for wanting possession: ibid. … 29. Sixthly, an Article 8 defence on the grounds of lack of proportionality must be pleaded and sufficiently particularised to show that it reaches the high threshold of being seriously arguably: Powell at [33] and [34] (Lord Hope). 30. Seventhly, unless there is some good reason not to do so, the Court must at the earliest opportunity summarily consider whether the Article 8 defence, as pleaded, and on the assumption that the pleaded facts relied upon are correct, reaches that threshold … If the pleaded defence does not reach that threshold, it must be struck out or dismissed: ibid. The resources of the court and of the parties should not be further expended on it. 31. Eighthly, even where an Article 8 defence is established, in a case where the defendant would otherwise have no legal right to remain in the property, it is difficult to imagine circumstances in which the defence could operate to give the defendant an unlimited and unconditional right to remain: comp. Pinnock at [52]. That might be the effect of a simple refusal of possession without any qualification. It is particularly difficult to imagine how that could possibly be appropriate in a case where the defendant has never been a tenant or licensee of the local authority. Otherwise, the effect of the Article 8 defence would be that the Court would have assumed the local authority’s function of allocating its housing stock, preferring the right of the defendant to remain, without any tenancy or contract, over all the other people entitled to rely on the local authority’s statutory housing duties and without the benefit of any knowledge of who those people are and their circumstances and of other relevant matters which would properly guide the local authority in housing management decisions.”

“Edward McDonagh avers that he is disabled, suffering from mental health problems, and the disability implications of the challenged decisions involved the claimant doing ‘all that can reasonably be expected of it to accommodate the consequences of the disabled person’s disability’: see Akerman-Livingstone v Aster Communities Ltd (formerly Flourish Homes Ltd) [2015] UKSC 15 , which here meant sharply focusing on the different options as explained in the [Welsh Government Guidance for managing unauthorised encampments], rather than deciding to evict for the insufficient reasons relied on by the claimant.”