More light on article 8: exceptions to the rule

April 12, 2012

Catherine Rowlands examines the circumstances where a successful defence relying on Article 8 might arise.

Since the landmark judgment of the Supreme Court in Manchester City Council v Pinnock [2010] UKSC 45, shortly followed by that of Hounslow LBC v Powell [2011] UKSC 8, one question has been mainly unanswered. What circumstances can give rise to an article 8 defence?

We know that in “the overwhelming majority of cases” [Powell, paragraph 37] there will be no breach of article 8 and that it will therefore only be in exceptional cases that an article 8 defence will succeed (although exceptionality is an outcome, not a test: Corby BC v Scott [2012] EWCA Civ 276). There is, however, a deliberate lack of guidance on what circumstances will take a tenant outside the majority and make them one of the exceptions to the rule.

In Pinnock, the Supreme Court said: “The court’s obligation under article 8(2), to consider the proportionality of making the order sought, does represent a potential new obstacle to the making of an order for possession. The wide implications of this obligation will have to be worked out. As in many situations, that is best left to the good sense and experience of judges sitting in the County Court.” [57]

Although most judges have ample stocks of good sense, they would always feel happier with guidance to follow, and hoped that it would be provided in Powell. They were disappointed. In Corby, the Court of Appeal again declined to give much guidance: “In terms of the wider lessons to be learnt from these two cases, there is a limited amount that can be said so far as substantive issues are concerned. It is inevitable that, when a tenant against whom possession is sought raises an Article 8 argument, the prospects of the argument succeeding are very much dependent on the facts of the particular case. Accordingly, any one decision can be only of very limited assistance in terms of giving any sort of general guidance.” [34]

The judge seeking some clues as to the factors he should take into consideration can look at what has been argued so far.

In Pinnock, the Defendant argued unsuccessfully that the following circumstances made his case exceptional:

The fact that he was not personally responsible for the anti-social behaviour complained of. This is consistent with the case law in relation to secure or assured tenancies: the tenant is responsible for the actions of her visitors and household, and can be evicted even if completely innocent herself. It would therefore be strange if this amounted to a breach of article 8;
The fact that the perpetrators did not reside at the property – again, the secure tenant could not rely on this as a defence so there is no reason why a non-secure tenant should be in any better position;
The fact that the Council could seek other remedies against the children – eviction was still a proportionate response given the history of disregard of societal norms from this family;
The fact that he had resided at the property for over 30 years. In some ways this is an aggravating feature rather than mitigation – the anti-social behaviour had gone on for that much longer, and the family had had many chances to reform in that time.

In Corby the Court of Appeal rejected the contention that the following circumstances could be relied upon to found an article 8 defence:

The fact that the arrears had been cleared before the hearing. The tenant was obliged to pay that anyway and could not rely on her compliance with her contractual obligations;
The fact that the tenant had been the victim of a murderous attack: this was exceptional, but not related to the possession claim;
The fact that the Defendant would be found to be intentionally homeless – that would apply in most cases and in any event, if there was a right to be re-housed, that would mean that the article 8 defence was less likely to succeed;
Poor health stopping short of conditions that would be exacerbated by eviction.

Some further clues may be gleaned from a peripheral case – not landlord and tenant but the sale of a property on bankruptcy. Ford v Alexander [2012] EWHC 266 (Ch) is a decision of Peter Smith J – perhaps more famous for his coded judgment in the Da Vinci Code case. He was considering the no less cryptic provisions of s 335A of the Insolvency Act 1986 in conjunction with article 8.

The Fords had purchased a garage and converted it without permission into a studio flat. They obtained retrospective planning permission for the conversion – but it was limited to the Fords. When they left, it would have to revert to its former use as a garage or outhouse. Its saleable value was therefore significantly diminished and it had more value to the Fords than to their trustee in bankruptcy. The trustee made an application to sell the beneficial interest in the property; it was their only asset. That application is governed by section 335A which requires the Court to have regard to the interests of creditors, the conduct of the bankrupt's spouse, if relevant, the needs of the spouse and children of the bankrupt, and all the circumstances of the case; but unless the circumstances of the case are exceptional (that word again) the Court shall assume that the interests of the creditors outweigh all other considerations.

In resisting the application for a sale of the property the Fords relied on article 8 of the ECHR. It had already been held that the provisions of section 335A were compatible with article 8. However, the Fords contended that the Court should consider separately whether there are “exceptional circumstances” and whether it is proportionate to order possession. The learned District Judge, upheld by Peter Smith J, found that the two questions in fact involved the same exercise.

The “exceptional circumstances” prayed in aid by the Fords included

depression brought on by the worry of losing their home;
the ages of the Fords;
the difficulty of finding alternative accommodation.

These were described as being “the melancholy consequences of debt and improvidence” and not exceptional circumstances. Peter Smith J noted that Pinnock was expressly stated not to apply to private owners (such as the trustee in bankruptcy) and held that there was nothing in section 335A that infringed article 8. The provisions of the Act provide a necessary balance between the rights of creditors and the right to respect for the home of the debtor.

The case illustrates the extent of article 8. Article 8 does not give anyone a right to remain in their home indefinitely. But it informs the way the Courts look at claims for possession of whatever nature. But where, as with section 335A, or where the judge has to decide whether it is reasonable to order possession, the Court is already carrying out a balancing exercise, that is sufficient respect for article 8.

North of the Border, Courts are grappling with the same issues. In Glasgow City Council v Jaconelli [2011] Hous LR 17, the local authority had made a Compulsory Purchase Order in relation to J’s home and she sought to rely on article 8. The Council accepted she was entitled to do so – which would seem to be an inevitable concession. The Sheriff accepted the submission that “it would only be in exceptional circumstances that Article 8 proportionality would give to somebody in the position of the appellant a right to continue in possession when the appellant had no right under domestic law to continue possession” and that “a court can assume that a local authority will act in accordance with its duties unless there is powerful evidence to the contrary”. J sought to rely on four factors:

the compensation she would get might take several years to come through. The Sheriff held that to require the issue of compensation to be settled before the order for possession could be made would frustrate the whole scheme.
The fact that no suitable (in her view) alternative accommodation had been offered. The Sheriff relied on the presumption that the Council would act in accordance with its duties. He said “proportionality assumes that both parties will act reasonably” – the Defendant had rejected several offers of accommodation
The fact that the land was not needed immediately. On the facts, this did not succeed.
She alleged that possession would cause her problems with her mental health. The Court said “it is not sufficient in my opinion for a defender in a summary cause action to say that the granting of decree will cause problems for their health without specifying what these problems are”. “For the issue of mental health to have any relevance it would require to be established, for example, that the appellant's health would be adversely affected to a greater extent if she was removed from the property immediately as opposed to being removed from the property in, say, one or two years time. It must be borne in mind that at some juncture she will require to remove from the property standing that a CPO has been granted. That was not in dispute before me.”

Finally, the vexed question of the rule in Hammersmith & Fulham LBC v Monk [1992] 1 AC 478 continues to be raised. There will surely be a superior court ruling on this soon, as tenants’ representatives feel very strongly that the rule whereby a Notice to Quit by one of two joint tenants ends the tenancy for both is inconsistent with article 8. In London Borough of Wandsworth v Dixon [2009] EWHC 27 (Admin), HHJ Bidder QC sitting as a Deputy High Court Judge, held that there is no incompatibility between the rule in Monk and art. 8. Dixon appealed to the European Court of Human Rights and his claim has now been settled. The Government accepts that he did not have the chance to have the proportionality of his eviction assessed by the Court. To that extent, the claim for possession breached his human rights. But that did not involve any acceptance that the rule in Monk was in breach of article 8. Far from it: article 8 gives the right to respect for the home - not for the tenancy. Where the remaining tenant can challenge the proportionality of his eviction, that is all that article 8 requires. The common law rule in Monk does not need to be changed.

Conclusion

The only thing that can definitely be relied upon to found an article 8 defence so far is ill-health (physical or mental) that would be seriously exacerbated by the loss of this property. Whether there are any other exceptional factors will still have to be determined on a case by case basis and it is clear that appeals in article 8 cases will be far from exceptional in the next few years.

Catherine Rowlands is a barrister at Cornerstone Barristers.