Kay v United Kingdom  

Background

In the late 1970s, Lambeth London Borough Council owned a number of properties which were deemed unsuitable for use as council housing. The properties had been scheduled for demolition or redevelopment works.

However, in order to gain a use from the properties before these works could be carried out, and with the aim of providing shelter for the homeless, the council entered into an agreement with a charitable housing trust. Under this agreement, the trust would use the properties to house persons whom the council did not have a statutory duty to house.

This agreement was amended over time, and eventually the council and the trust entered into individual leases for the properties. Eventually, in 1999, Lambeth wished to take possession of the properties again. It terminated the leases under break clauses which had been written into them, and later brought summary proceedings against Kay and other occupiers.

The occupiers defended the proceedings. Their first argument, that they were secure tenants of the council under the Housing Act 1985, was unsuccessful. But, they also argued that an order for possession would breach their human rights under Article 8 of the European Convention on Human Rights (the Convention).

Following domestic case law, the human rights argument was dismissed on the basis that there was no reasonable prospect of it being successful, and summary judgment was given for the council.

The case was appealed up to the House of Lords, where it was considered in 2006 in the landmark case of Kay v Lambeth. Their Lordships agreed that the appeals should be dismissed, but were divided as to the correct test to be applied.

The majority (Lords Hope, Scott and Brown, and Baroness Hale) held that, if the requirements of housing law had been established and the landlord had an unqualified right to recover possession, the court should only decline to grant summary judgment where one of two 'gateways' applied - i.e. where there was a seriously arguable case that (a) the existing law was incompatible with the Convention, or (b) the council's decision to evict was irrational (in the conventional judicial review sense).

In contrast, the minority (Lords Bingham, Nicholls and Walker), while agreeing with 'gateway (a)', held that the standard for 'gateway (b)' should be the existence of a seriously arguable case that, in the occupiers' particular circumstances, the council's decision to evict was in breach of their Article 8 rights.

Before this case was heard in Strasbourg, two judgments were delivered in other cases - one before the European Court, and one in the domestic courts - both on similar facts.

In McCann v United Kingdom the European Court held that there had been a breach of Article 8 because, in possession proceedings, Article 8 required that the proportionality of the decision be determined by an independent tribunal. This was inconsistent with the majority's characterisation of gateway (b) in Kay - the European Court preferred the minority view.

In Doherty v Birmingham City Council, the House of Lords 'clarified' its earlier judgment in Kay, in light of the McCann case. The majority of their Lordships held that the gateway (b) did not need to be changed, but drew attention to the fact that conventional judicial review grounds could include a review of the proportionality of the decision.

The decision

The European Court held that the occupiers' Article 8 rights had been breached. This was because, at the time the occupiers' case was heard, summary judgment had prevented them from arguing, on the basis of their personal circumstances, that the possession order was disproportionate. As in the McCann case, there had been no ability to have the proportionality of the order determined by an independent tribunal.

The European Court welcomed the tendency of conventional judicial review grounds to develop and expand towards reviewing the proportionality of decisions. However, it stated that, while the Doherty case may lead to a more flexible application of gateway (b), this had occurred after the relevant case and so was not a relevant consideration.

Commentary

The case demonstrates the increasingly extensive reach of human rights law.

General principles

Even where there is a clear and apparently comprehensive statutory framework within which public authorities and the courts must act - as in the case of the possession proceedings brought here - all available elements of discretion must be exercised in a manner compatible with the Convention.

It is irrelevant whether the statutory provisions expressly make allowance for this. If they preclude it, they will themselves be incompatible with the Convention and may be challenged in Strasbourg. If they do not, they must be read in a way that requires actions taken under them to be compatible with the human rights of affected persons.

In practice this means that, where Convention rights are engaged - as, in Kay, the Article 8 right to respect for family life and home - the decision under challenge must be subject to a proportionality test. This means that the facts of the individual case will need to be considered. Since individuals have the right to the determination of these matters by an independent tribunal, the courts must be prepared to turn their mind to the circumstances of each case.

The limited effect of Kay

It is important to note that the European Court did not say what the outcome would have been, in the particular circumstances of the occupiers in Kay, had they in fact been given the opportunity to argue their cases on this basis. It might well have made no difference to the ultimate outcome. However, the fact they were never given that opportunity was sufficient to establish the UK's breach of the Convention.

As it happens, it is doubtful whether the judgment of the European Court in Kay now breaks new ground. An additional complication caused by the backlog of cases in Strasbourg is the extent to which domestic law might have developed before a case can be heard. The possession proceedings in this case were first brought in the summer of 2000. The House of Lords gave judgment in 2006. But before the case could reach Strasbourg, the House of Lords took the opportunity to modify its approach in Doherty, which was decided in 2008.

The European Court has undertaken a comprehensive and useful review of the judgments referred to above, but its conclusion is best described as unassertive. The decision implies that the majority position in Doherty could be Article 8 compliant, but at the most this would need to be judged on the individual case. In McCann, support was shown for the minority's characterisation of gateway (b) in Kay v Lambeth. Here the court has not expressly upheld that test.

Possession Proceedings

It follows that the law in this area remains uncertain, but it seems likely that the House of Lords decision in Kay v Lambeth, as modified by Doherty, will remain the law for the time being.

This means that the county courts will not be obliged to pass on to the High Court any possession proceeding where Article 8 is claimed to be infringed. When they are raised, human rights issues may still be dealt with summarily, in appropriate cases, but they must at least be dealt with. This includes having regard to the personal circumstances of the occupier and whether or not the order is proportionate in light of those circumstances. However, it still falls short of a full merits appeal of the local authority's decision.

Nevertheless, another successful challenge in Strasbourg may have an effect on the number of claims to be made. In addition, in many cases, these considerations will also be equally applicable to registered providers of social housing (as per R (Weaver) v London and Quadrant Housing Trust).

In the current economic climate, the risk of all of this must be that local authorities stop entering into this type of housing schemes where they have no legal obligation to do so, for fear of difficulties in later obtaining possession of the property. It would be a perverse effect of the law if it led to properties lying empty when they could be put to good use.

Continuing uncertainties

The law in this area is plagued by two prominent uncertainties.

The first is the unknown effect on the housing system of allowing occupiers to argue Article 8 rights alone as a defence to possession proceedings. Some have argued that this could open the floodgates to an unmanageable number of claims; leading to significant problems for local authorities and social landlords in the redistribution of accommodation in order to best meet the needs of those they are tasked with assisting. Others are less worried. The concern is certainly not fanciful, but ultimately it is hypothetical.

The second uncertainty extends far beyond the ambit of social housing law; the ability of judicial review grounds to satisfy the need to consider the proportionality of decisions when this is required under the European Convention on Human Rights. In Strasbourg, the Equalities and Human Rights Commission submitted that judicial review grounds did not have that ability; a submission that is at odds with domestic law in place at least since the House of Lords judgment in R (Daly) v Secretary of State for the Home Department (2001), in which judicial review was held to be perfectly able to meet these requirements.

In our view, judicial review has proven itself sufficiently adaptable to develop in a way that allows for review on the basis of proportionality. But the European Court in Kay notably refused to make a finding on the point.

In light of these uncertainties, it is doubtful that these are the last occupiers who will be travelling the long road to Strasbourg.