FOURTH SECTION
Application no. 65819/10
Kathleen STOKES
against the United Kingdom
lodged on 4 November 2010
STATEMENT OF FACTS
1. The applicant, Ms Kathleen Stokes, is a British national, who was born in 1979 and lives in London. She is represented before the Court by Mr Keith Coughtrie of Davies Gore Lomax, a firm of solicitors practising in Leeds.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant is an Irish traveller who first began living on a caravan site at Lynton Close, Great Central Way, London NW10 when it was built in 1997. The site is owned by the London Borough of Brent (“Brent Council”). The applicant lived with her mother and siblings in Pitch 1. She married in 1998 and moved to live with her husband’s parents in East London. They separated in 1999 and the applicant returned to the site. The applicant and her husband have four children: Ryan, Natasha, Paul and Harvey. Ryan has been diagnosed as suffering from attention deficit disorder. Both Ryan and Natasha have special educational needs and attend St. Margaret Clitherow School.
4. As the applicant’s mother’s pitch had become overcrowded, the applicant made an application to Brent Council for a separate pitch. In January 2007, the applicant’s sister vacated Pitch 32 – the pitch opposite that of the applicant’s mother – but left a mobile home there. The applicant and her then-three children moved in without Brent Council’s consent.
5. By letter dated 10 October 2007 – written while the applicant was heavily pregnant – Brent Council, through Azadeh Community Network, which managed the site, indicated that it would “tolerate” the applicant’s occupation of Pitch 32 for a period of three months following the birth of her child. The applicant gave birth on 23 October 2007.
6. On 8 November 2007, Azadeh Community Network offered the applicant a licence for Pitch 24 on another part of the site. The offer was rejected on 16 November 2007. According to the judgments of the domestic courts the applicant did not give any reasons in the pro forma letter of refusal which she sent to the Council. However, she subsequently asserted that as the families living on pitches near to Pitch 24 had previously been hostile towards members of her family, she feared that she and her children would be at risk of physical attack there.
7. By a letter dated 7 April 2008, Azadeh Community Network indicated that it would not tolerate the applicant’s continued occupation of Pitch 32 beyond 25 April 2008. The reasons given were that the pitch had originally been designed for office space rather than for residential accommodation and the Council wished to extend its current office accommodation. The letter also gave details about what the applicant should do in relation to her homelessness application.
8. On 17 April 2008 the applicant applied to Brent Council for homeless persons’ accommodation.
9. On 1 May 2008 the Council issued a claim for possession of Pitch 32. The claim was heard on 14 May 2008 by a Circuit Judge. At the time, the leading domestic case was that of Kay and Others v. Lambeth London Borough Council; Leeds City Council v. Price and Others [2006] UKHL 10 (“Kay”), in which the House of Lords held that if the requirements of domestic law had been established and the right to recover possession was 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 were if a seriously arguable point was raised that the law which enabled the court to make the possession order was incompatible with Article 8, or if the defendant wished 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 (that is, that it was Wednesbury unreasonable). The applicant submitted that this decision effectively removed the jurisdiction of the Administrative Court in cases of public authority evictions to the Country Court. She also submitted that following Kay a defendant to these such possession proceedings could only raise a public law defence if it was “seriously arguable”, otherwise the court would deal with the matter summarily. This interpretation, she submitted, was supported by Rule 55.8 of the Civil Procedure Rules, under which a County Court is obliged to allocate a claim to a track for hearing if it is “genuinely disputed on grounds which appear to be substantial”.
10. In the present case the applicant sought to argue that the decision to recover possession was Wednesbury unreasonable. She also sought to rely, inter alia, on Article 8 of the Convention. The judge found that the grounds for disputing the claim were not “seriously arguable” and summarily granted possession. In particular, he found that, as the burden of proof was on the applicant to show that her grounds of dispute were “seriously arguable”, it was not open to her to seek disclosure or a statement of detailed reasons from the Council. This, he considered, would amount to a “fishing expedition”.
11. On 31 July 2008 the applicant was granted permission to appeal to the High Court on the grounds, inter alia, that disclosure under the summary procedure in the County Court was much more limited than that required by the Administrative Court in judicial review proceedings and, in the absence of disclosure from the Council, she had been unable to discover whether it had in fact taken into account all relevant considerations; and that her eviction violated her rights under Article 8 of the Convention. The effect of the order for possession was stayed pending the decision of the High Court.
12. The appeal was dismissed on 10 July 2009. The judge held that it was not sufficient, where the burden of proof was on the applicant, to assert that the claimant may have failed to take account of relevant matters. However, with regard to limited disclosure available under the summary procedure, he noted that the pre-action procedure in judicial review proceedings did not create an obligation on the parties and its true purpose was to allow them to avoid litigation if they wished to. In any case, he noted that there was:
“no suggestion in Kay or Doherty that the House of Lords was contemplating a wholesale transfer or even a modified transfer of judicial review procedures to the county court.”
Finally, the judge found that he was constrained by the House of Lords’ decision in Kay from considering the Article 8 point.
13. The applicant sought leave to appeal to the Court of Appeal. The Court of Appeal rejected the application on the basis that it did not meet the high threshold required for second appeals. In doing so the court also expressed some views on the merits, finding, in particular, that there was no statutory duty on the Council to express reasons for seeking possession and that the analogy with judicial review pre-action procedures was misconceived. In this respect, the court proceeded to draw a distinction between this case and others going forward under the Housing Acts, for which there were statutory duties to give reasons. The court concluded that it was:
“the state of the law in relation to the scope of the Council’s duty to give reasons rather than anything in CPR 55.8 itself which causes the [applicant] the difficulty which she faces in this case.”
In any case, the court found that imposing more substantial duties of disclosure on public authorities could not possibly meet the goal, expressed by Lord Bingham in Kay, to treat such matters summarily.
14. The applicant left Pitch 32 on 18 June 2010. She no longer lives in a caravan and has been temporarily housed in conventional housing by the Council.
B. Relevant domestic law and practice
1. Judicial consideration of Article 8 in possession proceedings
15. For a general summary of domestic proceedings prior to November 2010 regarding the right of defendants to rely on Article 8 in the context of a defence to possession proceedings, see the Court’s judgment in Kay and Others v. the United Kingdom, no. 37341/06, §§ 18-43, 21 September 2010.
16. Notably, in Kay and others v. London Borough of Lambeth and others; and Leeds City Council v. Price and others [2006] UKHL 10 (“Kay”), Lord Hope of Craighead clarified the two “gateways” via which a defendant in possession proceedings could challenge his eviction:
“... 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 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 [“gateway (a)”], 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 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 [“gateway (b)”], he should be permitted to do this provided again that the point is seriously arguable ...”
17. Lord Brown of Eaton-under-Heywood referred to the amendment to the 1968 Act allowing the County Court to suspend, for up to twelve months at a time, any possession order in respect of a local authority caravan site and noted:
“... Now, therefore, the county court would be entitled to suspend the order made against someone in Mr Connors’ position; previously, it was not.
By the same token moreover that the county court judge would have been unable, under the pre-existing law, to decline or postpone a possession order in the case of someone in Mr Connors’ position, so too in my judgment he is unable in other cases to give greater effect or weight to the occupier’s right to respect for his home than is allowed for under domestic law ...”
He added:
“The difficulty with such [a public law] defence, however, is that it would be well nigh impossible to make good, the challenge necessarily postulating that under domestic property law the claimant authority was entitled to possession. Accordingly the argument could only be that no reasonable public authority could properly invoke that domestic law right. This would be a more stringent test than would apply were the court ... under a primary duty to reach its own judgment on the justifiability of making a possession order.
For my part I think that such an argument could perhaps have been mounted successfully in Connors: having regard to the great length of time (most of the preceding sixteen years) that that gypsy family had resided on the site, it was unreasonable, indeed grossly unfair, for the local authority to claim possession merely on the basis of a determined licence without the need to make good any underlying reason for taking such precipitate action ...
It is difficult to suppose, however, that a defence based on a public law challenge of this character to a public authority’s decision to pursue its domestic law rights could properly succeed except in such an infinitely rare case as Connors itself ...”
18. The subsequent case of Doherty and others v. Birmingham City Council [2008] UKHL 57 considered the Kay gateways. As regards the scope of gateway (b), Lord Hope clarified:
“52. ... [T]he speeches in Kay show that the route indicated by this gateway is limited to what is conveniently described as conventional judicial review ...
53. ... [I]t 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 ...
...
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.”
19. On 3 November 2010 the Supreme Court sitting as a panel of nine judges in Manchester City Council v. Pinnock [2010] UKSC 45 (“Pinnock”) considered the application of Article 8 to a claim for possession brought against a demoted tenant under Chapter 1A of Part V of the Housing Act 1996 (as inserted by paragraph 1 of Schedule 1 to the Anti-social Behaviour Act 2003). Following a review of the case-law, the Supreme Court considered the following propositions to be well established in the jurisprudence of this Court:
“(a) Any person at risk of being dispossessed of his home at the suit of a local authority should in principle have the right to raise the question of the proportionality of the measure, and to have it determined by an independent tribunal in the light of article 8, even if his right of occupation under domestic law has come to an end ...
(b) A judicial procedure which is limited to addressing the proportionality of the measure through the medium of traditional judicial review (i.e., one which does not permit the court to make its own assessment of the facts in an appropriate case) is inadequate as it is not appropriate for resolving sensitive factual issues ...
(c) Where the measure includes proceedings involving more than one stage, it is the proceedings as a whole which must be considered in order to see if article 8 has been complied with ...
(d) If the court concludes that it would be disproportionate to evict a person from his home notwithstanding the fact that he has no domestic right to remain there, it would be unlawful to evict him so long as the conclusion obtains – for example, for a specified period, or until a specified event occurs, or a particular condition is satisfied.”
20. The Supreme Court thus considered that in order for domestic law to be compatible with Article 8 of the Convention, where a court was asked by a local authority to make an order for possession of a person’s home, the court had to have the power to assess the proportionality of making the order, and, in making that assessment, to resolve any relevant dispute of fact.
21. In terms of the practical implications of this principle, the Supreme Court noted that if domestic law justified an outright order for possession, the effect of Article 8 could, albeit in exceptional cases, justify granting an extended period for possession, suspending the order for possession on the happening of an event, or even refusing an order altogether.
22. Finally, the court observed that the need for a court to have the ability to assess the Article 8 proportionality of making a possession order in respect of a person’s home might require certain statutory and procedural provisions to be revisited.
23. In London Borough of Hounslow v Powell and Others [2011] UKSC 8 (“Powell”), handed down on 23 February 2011, the Supreme Court held that the principle in Pinnock applied not only to demoted tenancies but to all cases where a local authority was seeking possession in respect of a property that constituted a person’s home for the purposes of Article 8.
24. Lord Hope observed that following Pinnock the court had to have the ability to assess the Article 8 proportionality of making a possession order in respect of a person’s home, even if his or her right to occupation had come to an end. The question of whether the property in question constitutes the defendant’s “home” was likely to be of concern only in cases where an order for possession was sought against a defendant who had only recently moved into accommodation on a temporary or precarious basis. Therefore, in most cases it could be taken for granted that a claim by a person who was in lawful occupation to remain in possession would attract the protection of article 8.
25. With regard to the proportionality assessment, Lord Hope stated that:
“33. The basic rules are not now in doubt. The court will only have to consider whether the making of a possession order is proportionate if the issue has been raised by the occupier and it has crossed the high threshold of being seriously arguable. The question will then be whether making an order for the occupier’s eviction is a proportionate means of achieving a legitimate aim.”
26. The threshold for raising an arguable case on proportionality was a high one which would only succeed in a small proportion of cases. However, if the threshold was crossed, the court would have to consider whether making an order for possession was a proportionate means of achieving a legitimate aim. Lord Hope continued:
“The proportionality of making the order for possession at the suit of the local authority will be supported by the fact that making the order would (a) serve to vindicate the authority’s ownership rights; and (b) enable the authority to comply with its public duties in relation to the allocation and management of its housing stock. Various examples were given of the scope of the duties that the second legitimate aim encompasses – the fair allocation of its housing, the redevelopment of the site, the refurbishing of sub-standard accommodation, the need to move people who are in accommodation that now exceeds their needs and the need to move vulnerable people into sheltered or warden-assisted housing. In Kryvitska and Kryvitskyy v Ukraine (Application No 30856/03) (unreported) given 2 December 2010, para 46 the Strasbourg court indicated that the first aim on its own will not suffice where the owner is the State itself. But, taken together, the twin aims will satisfy the legitimate aim requirement.
So, as was made clear in Pinnock, para 53, there will be no need, in the overwhelming majority of cases, for the local authority to explain and justify its reasons for seeking a possession order. It will be enough that the authority is entitled to possession because the statutory pre-requisites have been satisfied and that it is to be assumed to be acting in accordance with its duties in the distribution and management of its housing stock. The court need be concerned only with the occupier’s personal circumstances and any factual objections she may raise and, in the light only of what view it takes of them, with the question whether making the order for possession would be lawful and proportionate. If it decides to entertain the point because it is seriously arguable, it must give a reasoned decision as to whether or not a fair balance would be struck by making the order that is being sought by the local authority: Kryvitska and Kryvitskyy v Ukraine, para 44.
...
In the ordinary case the relevant facts will be encapsulated entirely in the two legitimate aims that were identified in Pinnock, para 52. It is against those aims, which should always be taken for granted, that the court must weigh up any factual objections that may be raised by the defendant and what she has to say about her personal circumstances. It is only if a defence has been put forward that is seriously arguable that it will be necessary for the judge to adjourn the case for further consideration of the issues of lawfulness or proportionality. If this test is not met, the order for possession should be granted. This is all that is needed to satisfy the procedural imperative that has been laid down by the Strasbourg court.”
2. The summary procedure
27. In Kay, Lord Bingham set out some principles in connection with when a defendant will be permitted to defend a possession claim. At paragraph 39, he offered this guidance:
“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....”
28. The relevant section of the Civil Procedure Rules that deals with possession claims provides:
“(1) At the hearing fixed in accordance with rule 55.5(1) or at any adjournment of that hearing, the court may –
(a) decide the claim; or
(b) give case management directions.
(2) Where the claim is genuinely disputed on grounds which appear to be substantial, case management directions given under paragraph (1)(b) will include the allocation of the claim to a track or directions to enable it to be allocated.”
29. In comparison, the Pre-Action Protocol for Judicial Review provides:
“6. This protocol does not impose a greater obligation on a public body to disclose documents or give reasons for its decision than that already provided for in statute or common law. However, where the court considers that a public body should have provided relevant documents and/or information, particularly where this failure is a breach of a statutory or common law requirement, it may impose sanctions.”
Consequently, a defendant to a judicial review claim owes a very high duty to assist the court with full and accurate explanations of all facts relevant to the issue the court must decide.
30. In Powell, Lord Hope, in responding to arguments made by counsel, said this in connection with the giving of reasons before or after the service of notice to quit:
“46. The Court was invited to answer a series of practical questions which were designed to obtain advice as to the course that should be followed in homelessness cases to enable the occupier to make representations before or after service of a notice to quit and to enable the tenant to know the reasons why possession was being sought. Drawing upon the practice of pre-action protocols, Mr Luba said that the procedural dimensions of article 8 could best be satisfied by requiring that, before possession proceedings are begun, the non-secure occupier knows why the proceedings are being initiated and has an opportunity to make representations to the official charged with making the decision whether to bring proceedings. The Court was also invited to answer a series of questions directed to the way claims for possession in the case of introductory tenancies should be dealt with procedurally in the county court.
47. Detailed questions as to the way claims should be dealt with procedurally are best addressed in the light of facts and circumstances arising from the way proceedings are actually being handled in practice. Otherwise there is a risk that such guidance as this Court can give will create more problems than it will solve. The statutory regimes that are in place must also be taken into account. These are not cases where the defendants were granted secure tenancies. There is no statutory obligation to give reasons with the notice to quit in homelessness cases, and the local authority does not have to justify its motives for seeking a possession order. It is not obvious that pre-action protocols have a place in proceedings of this kind.”
31. Later in the judgment, Lord Phillips of Worth Matravers considered the same issue:
“114. Mr Luba submitted that the procedural protections implicit in article 8 required that the tenant should be informed of the authority’s intention to seek possession and the reasons for it before service of the notice to quit, or at least before the commencement of the possession proceedings, in order to permit the tenant the opportunity to challenge those reasons and the authority’s decision. ... If the defendant is not informed of the reason why the authority is seeking possession he will be denied the opportunity of displacing the presumption that the authority’s action will serve a legitimate aim.
115. I do not believe that the Strasbourg Court would tolerate a regime under which a person can be deprived of his home by a public authority without being told the reason for this. Nor would I, for it is fundamentally unfair. In Connors ... at para 94 the Strasbourg Court said:
“The power to evict without the burden of giving reasons liable to be examined as to their merits by an independent tribunal has not been convincingly shown to respond to any specific goal.... The references to ‘flexibility’ or ‘administrative burden’ have not been supported by any concrete indications of the difficulties that the regime is thereby intended to avoid.”
The Court was there dealing with gipsies but those words are equally applicable in the present context.
116. I do not suggest that there is any burden on a local authority, in the first instance, to justify to the court its application for a possession order or to plead the reason for seeking this. What I do suggest is that the tenant must be informed of the reason for the authority’s action so that he can, if so minded, attempt to raise a proportionality challenge. I do not believe that recognition of this obligation will have any significant practical consequences for I find it inconceivable that local authorities are, in practice, seeking possession orders against tenants accommodated pursuant to Part VII without telling them why they are doing so. ...
117. Mr Luba urges that notice of the authority’s reasons should be given before service of a notice to quit. I suspect that this is precisely what does happen in practice, but I would not, without further consideration, rule that article 8 requires this. It is possible that article 8 will be satisfied provided that the occupier is given the information he needs in time to decide whether or not to raise a challenge in the possession proceedings.”
COMPLAINTS
The applicant complains under Article 8 of the Convention that she was not able to raise her right to respect for her home and family life, or an alleged positive right deriving from her background as an Irish traveller, in the domestic possession proceedings.
The applicant further complains under Articles 6 and/or 8 of the Convention that in the absence of full disclosure or a fuller statement of reasons for her eviction she could not properly defend the possession claim.
QUESTIONS TO THE PARTIES
1. Did the applicant’s residence on Pitch 32 between January 2007 and 14 May 2008, when the County Court first granted the possession order, engage Article 8 § 1 of the Convention? In particular, did the applicant’s mobile home constitute a “home” for the purposes of that provision?
2. Has there been a breach of the procedural aspect of Article 8, taking into account the Court’s judgments including, in particular, Kay and Others v. the United Kingdom, no. 37341/06, 21 September 2010?
3. Did the absence of any domestic law obligation on the public authority landlords to give a detailed statement of reasons in connection with possession proceedings brought against a trespasser violate the applicant’s rights under Articles 6 and/or 8 of the Convention?
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