Kay and Doherty The Current Law

1. Kay and DohertyThe Current Law Wayne Beglan

2. Sequence of cases • Qazi (HL) • Connors (ECtHR) • Kay (HL x7) • McCann (ECtHR) • Doherty (HL) • Dixon (15 Jan 09, HC) • Doran (3 March 09, CA) • McGlynn (1 April 09, CA) • Defence Estates (5 May 09, HC) • Taylor (23 June 09, CA) • Pinnock (31 July 09, CA)

3. Summary • Gateway (a) – seriously arguable point of incompatibility • Gateway (b) – seriously arguable extended irrationality • “highly exceptional” – Bingham minority in Kay

4. [2006] UKHL 10; [2006] 2 AC 465; [2006] 2 WLR 570; [2006] 4 All ER 194 That the right of a public authority landlord to enforce a claim for possession under domestic law would, in most cases, automatically supply the justification required by article 8(2) for an interference with the occupier's right to respect for his home Kay

5. Kay • that the public authority was not required to plead or prove justification • courts were to assume that domestic law struck the proper balance of the competing interests and was compatible with article 8

6. Kay • that a challenge to the making of an order could be raised in the possession proceedings in the county court, • so far as its jurisdictional limits permitted, • if the defendant could, exceptionally, show a seriously arguable case that the relevant domestic law was incompatible with the Convention

7. Kay • but that (Lord Bingham of Cornhill, Lord Nicholls of Birkenhead and Lord Walker of Gestingthorpe dissenting) • where the requirements of the law had been satisfied and the right to recover possession was unqualified no challenge based only on a defendant's individual circumstances was permissible

8. Kay • post, paras 28 -30 ,34 -36 , 39 ,50 , 53 -55 ,58 -59 , 86 ,108 -111 , 172 ,174 -175 ,180 -183 , 185 ,188 , 192 , 198 ,200 , 203 , 212

9. §110 • 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:

10. Gateway (a) • (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 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;

11. Gateway (b) • (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

12. Gateway (b) • Seriously arguable • Only applies to summary hearing • Test at full hearing simply whether D is right to allege decision was one that no reasonable person would consider justifiable

13. Doherty • [2009] 1 AC 367 [2008] 3 WLR 636. • In Doherty the House held that it would not overrule the majority in Kay – they provided clarification • Accordingly Kay remains the binding authority on the point, with such further explanation given in Doherty as it consistent with the majority view in Kay

14. Doherty – Lord Hope §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. [55] • Begs the question – how much wider?

15. §55 • 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 • Length of time plainly capable of being a “personal circumstance”

16. §55 • 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. • Italicised in Pinnock

17. Doherty – Lord Scott • para. 61 – rejection of attempt to undermine Kay; • para. 66 – para. 110 of Kay set out; • para. 79 – rejection of attempt to incorporate security of tenure by the back door; • para. 85 – requirement on judge is to review the lawfulness of the authority’s decision – decision outside the range of reasonable responses may be quashed as erroneous in public law

18. Doherty – Lord Rodger • agreed with Lords Hope and Walker;

19. Doherty – Lord Walker • para. 115 – “In common (as I understand it) with the rest of your Lordships I do not think, despite the decision in McCann, that it would be right for this Appellate Committee to depart from the decision recently arrived at in Kay by an Appellate Committee of seven members”; • para. 117 – the breach identified by the ECtHR in McCann was procedural; • para. 123 – it is clear on a challenge under gateway (b) that the judge will in effect be hearing an application for judicial review on traditional judicial review grounds.

20. Doherty – Lord Mance • para. 134 – recalling Dyson LJ recognising that a shift from conventional JR to a proportionality test could was a step that could only be taken by the House; • para. 135 – noting proportionality not introduced by this case; • para. 140 – under gateway (b) the only challenge is conventional judicial review

21. Dixon • [2009] EWHC 27 Admin; [2009] NPC 21; [2009] LL&TR (CA refused PtA) • Challenge to the Monk rule in case of joint tenancy • Joint tenancy terminated by Ts NTQ. D was found to have (in part class A) drug habit • And gateway (b) challenge – covered by earlier JR in Dixon No 1

22. Dixon [2] • Common law rule: survived many housing re-enactments over more than 100 years - see Monk • Other cases demonstrate the strength of the “striking the balance” point

23. Doran v Liverpool CC • [2009] EWCA Civ 146 • Irish traveller – on local authority pitch • Counsel’s approach to gateway (b) • LHA - new form of judicial review of “uncertain dimensions”, wider than judicial review as ordinarily understood but at the same time not extending to a full application of the Convention. • SoS submitted that the effect of the clarification and modification in Doherty was far more limited. It was a modest development in the elucidation of domestic public law principles. • Appellant - took an intermediate position, submitting that the effect was less dramatic than was suggested by Mr Bartley Jones but more significant than was suggested by Mr Stilitz.

24. Doran • Counsel were united in the view that the decision had created a new “battleground area” • Much argument about the scope of the modification of gateway • A bleak prospect [46]

25. Doran • Helpful approach to what is a reasonable decision: [56] • And no duty to conduct judicial investigation as to where the truth lies [56] • That point reinforced in both Taylor and Defence Estates

26. Doran • Toulson LJ thought twofold effect of Doherty • All factors can potentially be relevant (including personal) for example: • Money spent on pitch / property • Time taken to get pitch / property • History / family support and connections • Health problems (educational problems) old age • Absence of alternative accommodation • Prospect of improvement in (e.g. behaviour)

27. Doran • Second effect of Doherty • Question whether the council’s decision was one which no reasonable person would have made is to be decided by applying public law principles as they have been developed at common law, and not through the lens of the Convention • Promising – but read on!

28. Doran • Lord Hope stated at para 55 that the requisite scrutiny would not involve the judge substituting his own judgment for that of the local authority. • It cannot therefore have been envisaged that the court would make a judgment of the reasonableness of the council’s decision otherwise than on the facts as they reasonably appeared, or should have appeared, to the council at the time of making its decision. [60] • As to when “decisions” might now be “made” see Taylor

29. Doran • See postscript at [65-69] for helpful guidance on traveller cases involving phase 2 MHA 1983

30. Doran • Court rejected argument that court can consider case retrospectively: [57], [58]

31. McGlynn v Welwyn HC • [2009] EWCA Civ 285 • Non-secure tenancy (para 4 case) • NTQ served as a result of ASB (magnet case)

32. McGlynn • “If we do not receive any further complaints of anti-social behaviour that can be linked to Mr McGlynn or his property we will consider granting him a further non-secure tenancy with an option to him being re-housed in a smaller property as requested. However, if the complaints continue, we will have no option but to continue with the legal action required to repossess 20 Kingscroft… “ (Emphasis supplied)

33. McGlynn • Correct approach is Kay, Doherty [32] • WS from authority did not give details of continuing complaints – who made them, what they were, their impact etc. • Court applied “seriously arguable” test – appears to be on basis DJ made summary order: [31]

34. Defence Estates • [2009] EWHC 1049 (Admin) • No security of tenure: para 11 sch1 HA 1988 • D was wife of resigned army officer – provided with accommodation for 18 years after resignation

35. Defence Estates • S.49A(1) – “positive discrimination” provision • “But to suggest that section 49A enables someone who otherwise would fail to have any defence to a possession order nonetheless to remain is to take that much too far.” [23]

36. Defence Estates • Conclusions in paras 57, 58 • No domestic law right to remain • Need of army for accommodation outweighed individual Art 8 rights • Unclear whether being treated as a “summary hearing” or not

37. Taylor • [2009] EWCA Civ 613 • Trespassers case – former right to occupy pursuant to AST granted by HAssoc who took from LHA (Luton) who took from another LHA (Bedford – C) – similar to Kay • The main issue - whether arguable that the circumstances were such as to impose on the council an obligation to consider the personal circumstances of the appellants? • Second issue - whether, in judging the lawfulness of the council’s decision, the test is the strict Wednesbury rationality test or something wider?

38. Taylor • Waller LJ emphasised that private landowner would face no difficulty • Only additional point is A8 defence because C was a public body with decisions susceptible to JR [18] • Concept of “further decisions” discussed [39-42]

39. Taylor • [Kay type] situations may make it unreasonable not to allow a period of time to bring the possession order sought into effect but that is something which the court oversees and which the law allows for [44] • Even if one made the assumption that the public authority was aware of the personal circumstances of the occupiers, their obligation to take account of them could never make it unreasonable to take proceedings for possession. Provided they could establish their absolute right to possession, personal circumstances could only be relevant to the extent to which a court was prepared to postpone execution, which a public authority would be entitled to leave to the court [45].

40. Pinnock – demoted tenant • [2009] EWCA Civ 852; [2009] 32 EG 68 (CS) • Tenant of 30 years standing, 5 children aged 26 to 19 • Demoted due to ASB – by household - 8 June 2007, two asbo’s, blackmail, dwd, poa offences • 6 June 2008 – MCC served possession notice based on events of 22 Sept 07 and 18 Jan 08

41. Pinnock • [29] When, as here, the conduct of the tenant or those residing with or visiting him has been so serious as to justify a demotion order, very little is required to justify the landlord’s decision to obtain possession. • It would be wholly wrong, and inconsistent with the statutory scheme, to scrutinise the landlord’s decision at the second stage with the rigour required of the county court at the first stage

42. Pinnock • Proportionality at the second stage is not a high test • decision must not be one that no reasonable person would consider justifiable • good reason • Now the best part ->

43. Pinnock • Further landlord’s decision at the second stage is not subject to the requirement of proportionality [32] • Simply “extended rationality” [47] on JR challenge • And note CC has no JR jurisdiction in demotion cases – [49-52]