A question of compatibility

In the second part of a two-part series, Jenny Oscroft considers the High Court’s recent judgment in Wilson v London Borough of Harrow, an example of a Gateway A challenge on the compatibility of domestic law with Article 8 of the European Convention on Human Rights and the Human Rights Act 1998.

The recent judgment of the High Court in Wilson v London Borough of Harrow [2010] EWHC 1574 (QB), dealt with a gateway A defence to an unqualified claim for possession by the London Borough of Harrow, in respect of a property previously the subject of a secure joint tenancy which had been determined by notice to quit served by a departed tenant.

A gateway A challenge is to the compatibility of the law itself with Article 8, as opposed to a gateway B challenge to the reasonableness of a public authority landlord’s decision or action (in effect, judicial review in the county court).

In this case, the law said to be incompatible is the rule in Hammersmith & Fulham v Monk [1992] 1 AC 478 which establishes that a notice to quit given by one joint tenant, without the concurrence of the other joint tenant, validly determines a periodic tenancy in the absence of a term to the contrary in the tenancy agreement.

Mr and Mrs Wilson’s Joint Tenancy

The facts were as follows. The council granted a sole weekly periodic secure tenancy of a two-bedroom property in Harrow to Mrs Wilson in 1992. Following her marriage to Mr Wilson in 1994, the couple applied for and were granted a joint tenancy commencing in 1994.

By 2006 marital difficulties befell Mr and Mrs Wilson, in some part due to Mrs Wilson’s deteriorating mental health. Mr Wilson first approached the council’s housing officer, Ms Devine, in late 2006 to discuss his intention to leave Mrs Wilson and to address the accruing arrears. There followed several discussions between Mr Wilson, Ms Devine and Mrs Wilson’s sister.

In interview in February 2007, Mr Wilson was told he could serve a notice to quit in order to terminate the tenancy but that this would also end his wife’s interest in the property and he was therefore advised to seek independent legal advice before making a decision. In April 2007, without having taken legal advice, Mr Wilson served a notice to quit upon the council, thereby ending the tenancy.

Efforts to meet Mrs Wilson in order to address the arrears, and invite an application for a sole tenancy failed. A friend, Mr Martin, moved into her property. The community mental health team were engaged. An application for a sole tenancy was refused in November 2007. Possession proceedings were issued in March 2008.

The council proposed to bid directly under its allocations scheme and on behalf of Mrs Wilson for a number of one-bedroom properties in the locality, but she did not want to leave. At the trial in Willesden County Court, Mrs Wilson was represented by the Official Solicitor. By that time, there were 1,295 households on the Housing Register for two-bedroom accommodation, and the arrears were just under £3,200.

County Court Proceedings

In the county court it was argued on behalf of Mrs Wilson that the notice to quit was invalid because the application of the rule in Monk was incompatible with Article 8, relying on both the fact that council had induced or influenced Mr Wilson to serve the notice and on the decision of the European Court of Human Rights in McCann v UK [2008] 47 EHRR 40. It was further argued that the council’s decision to seek possession was one which no reasonable authority could have made, nor was it proportionate to a legitimate aim pursued.

The Council’s case was that Monk remained good law, there had been no inducement, and that Mrs Wilson’s housing needs could and would be met in a one-bedroom flat in the locality.

HHJ Million allowed the claim, finding neither inducement nor influence of Mrs Wilson.  Following Wandsworth v Dixon [2009] EWHC 27 (Admin) and Qazi, he held that the rule in Monk was compatible with Article 8.  He found that it was neither irrational nor disproportionate for the local authority to seek possession.

Appeal before Mr Justice Foskett

On appeal before Mr Justice Foskett, the Appellant’s claim developed significantly. It was argued on behalf of Mrs Wilson that the rule in Monk was per se incompatible with Article 8 on the basis that a person could be deprived of all legal interests in her home without her knowledge or consent, that such a deprivation was not consistent with a person’s right to respect for her home.

It was argued that the incompatibility could be removed by developing the common law in a manner that allowed a notice to quit to operate in a way that was analogous to an assignment or release, leaving the remaining tenant as sole tenant and releasing the departing tenant from his obligations under the tenancy.

Permission was also sought to raise a new ground of appeal, that the local authority’s failure to advise Mr Wilson of the option of assigning his interest in the joint tenancy to his wife as sole tenant amounted to an abuse of process.

In relation to the first ground, Foskett J held that the rule in Monk was compatible with Article 8 and that in any event he was bound by higher authority to so hold. He held that, whilst the rule in Monk itself was not directly challenged in Qazi, the essence of the argument run in the House of Lords was that the consequences flowing from the operation of the rule were not compatible with Article 8 and that their Lordships therefore plainly considered the effect the rule had on secure tenancies.  Further, he considered that the argument had been addressed again and answered in Dixon.

For those reasons, he did not find it necessary to deal with the proposed ‘solution’ to the incompatibility by way of development of the common law, which also depended on the assertion, contested by the council, that Mr Wilson could have assigned his interest in the joint tenancy to Mrs Wilson under s.91(3)(c) of the 1985 Act.  He did not accept that the law as it stood permitted parties to construe a notice to quit as an assignment or release.

Permission was refused on the new abuse of process argument on the basis that it had been raised only before the High Court, was unarguable in the light of the findings of fact made by the county court judge and also inconsistent with Foskett J’s appraisal of the facts before him.

It is understood that permission to appeal will be sought, and so it remains to be seen if a higher court will be persuaded that the effect of the rule in Monk is either incompatible per se or open to an incompatibility finding in any given individual case.

If the law develops in line with the former contention, the horizontal effect of the 1998 Act in respect of private sector landlords and joint tenancies will fall to be considered.

Finally, the statutory construction argument on the ability of a joint tenant to assign to the remaining sole tenant was not resolved by Foskett J and is therefore left to another day.

Jenny Oscroft is a barrister at 2-3 Gray’s Inn Square (http://www.2-3graysinnsquare.co.uk).

The first article can be read here.