In this case, the defendant’s grandparents had been granted a weekly tenancy of a three-bedroom house in the claimant local authority’s area in 1967. In 2007, the defendant began occupying the house with his grandparents and was subsequently joined by his son and by his partner. In 2008, the grandfather died and the tenancy automatically vested in the grandmother as successor pursuant to sections 87 and 89(2) of the Housing Act 1985. In 2010, grandmother died. Section 37 of that Act precluded any further right of succession in favour of the defendant and so the weekly tenancy vested in the grandmother’s estate. In October 2011, the tenancy was terminated by a notice to quit that had been served on the Public Trustee. In November, the authority issued a claim for possession on the ground that the defendant had never been a tenant or a sub-tenant of the house and had no right to statutory succession under the Act. The defendant opposed the claim for possession on the ground that the court was required, under Article 8 of the European Convention on Human Rights, to consider whether an order for possession would be necessary in a democratic society and to consider the proportionality of such an order. The court dismissed the local authority’s claim for possession, concluding that, on balance and in exercise of the test of proportionality, eviction of the defendant and his family from the house to re-accommodate them in another property which was smaller, against the background of the connection with the house, would be disproportionate. The fact that there was a young child was also found to be a factor of particular weight. Therefore, the defence under Article 8 of the European Convention on Human Rights succeeded. The local authority appealed.
The appeal was allowed. It was found that the defence under Article 8 of the European Convention on Human Rights did not reach the threshold of being reasonably arguable and should have been struck out at the earliest opportunity. There was nothing exceptional about the housing needs of a couple who had limited financial means and were the parents of a young child. The fact that they had occupied the property for some time was irrelevant, since Parliament had limited the number of successions to a secure tenancy however long a person’s association with, and emotional ties to, a property and that legislative policy did not infringe Article 8 of the European Convention on Human Rights. It was established law that the fact that a respondent and his family had a right to be re-housed weighed against the defence under Article 8 of the European Convention on Human Rights. In effect, the court had assumed for itself the power Parliament had conferred on the authority to select the most suitable property for the persons who had a legal right to social housing. That had been done without any knowledge on the court’s part as to who were those other people who had an equal, or possibly better, claim to be housed and for whom the house would be as suitable, or possible more suitable as it would be for the defendant and his family. Since it would be wrong for the local authority to permit the defendant to remain in the house without payment of rent and other conditions, the effect of the order was to compel the local authority to grant the defendant a tenancy of the house to which he had no legal right.