R (McLellan) v Bracknell Forest Borough Council (Reigate and Banstead Borough Council v Benfield)

An attempted eviction from a home engages Article 8(1), even where the tenancy is terminable under a statutory scheme. The question is then whether the interference is justified under Article 8(2).

The introductory-tenancy regime in Housing Act 1996 was compatible with Articles 6 and 8. Its general policy was proportionate, and the combination of a fair statutory review and judicial review protected an individual tenant's Convention rights. A County Court could not conduct a merits defence to mandatory possession, but should adjourn where a Convention or public-law challenge was arguable.

Article 6 did not require a full rehearing before an independent court. The adequacy of judicial control depended on the nature of the decision, factual issues and the safeguards in the review process.

Two appeals concerned possession proceedings against introductory council tenants under Housing Act 1996. In the first, Longmore J had rejected a challenge to the compatibility of the scheme with the Convention. In the second, His Honour Judge Cook in the Epsom County Court made a possession order against a mother and daughter who had rent arrears and had not sought the statutory review.

The tenants contended that the mandatory possession procedure infringed Articles 6, 8 and 14 of the Convention and that the County Court should have wider powers to prevent eviction. The central questions were whether the scheme was generally compatible with Convention rights and whether its review and judicial-review machinery gave an individual tenant an effective remedy.

1. Both appeals were dismissed. Waller LJ, with whom Latham and Kay LJJ agreed, held that an attempt by a public landlord to evict a tenant from his or her home prima facie engaged Article 8(1). It was wrong to treat compliance with the tenancy's termination provisions as a preliminary answer which prevented Article 8 from applying. The questions of legality, necessity and proportionality belonged under Article 8(2).

2. The introductory-tenancy scheme created by Housing Act 1996 was not inherently incompatible with Article 8. Parliament was entitled to adopt a probationary scheme to address serious rent arrears and anti-social behaviour. Its general operation was proportionate. Nevertheless, a tenant could contend that eviction in the individual case was not justified under Article 8(2).

3. Section 127 could not, through section 3 of the Human Rights Act 1998, be construed to give the County Court a merits jurisdiction contrary to its mandatory terms. The court followed Manchester City Council v Cochrane and Another [1999] 1 WLR 809: where a Convention or public-law challenge was arguable, the County Court could adjourn possession proceedings to permit judicial review. That procedure allowed the tenant to rely on Convention rights under the 1998 Act without displacing the statutory possession scheme.

4. Article 6 was engaged because the review decision formed part of the determination of the tenant's civil rights. The review panel was not itself independent for Article 6 purposes, but the process as a whole was adequate. The statutory safeguards, the seniority and separation of the reviewer, and judicial review of fairness, evidential basis, factual error, rationality and proportionality did not require a complete rehearing on the merits. Councils should ordinarily explain by affidavit how the review was conducted, so that the County Court can decide whether an adjournment is required.

5. Section 89 of the Housing Act 1980 did not render the scheme incompatible. Its limits applied only where there was no arguable Convention infringement, or where the permitted postponement itself sufficiently prevented one. Article 14 added nothing: the scheme applied equally to all prospective tenants within it.

6. In the Reigate appeal, no review had been sought and no adjournment for judicial review had been requested. It was too late to seek judicial review, and the material disclosed no basis on which permission would have been granted.

• Court of Appeal (Civil Division): by [2001] EWCA Civ 1510, dismissed both appeals. Waller LJ gave the judgment, with which Latham and Kay LJJ agreed.
• Queen's Bench Division (Administrative Court): Longmore J, on 21 December 2000, rejected the contention that the introductory-tenancy provisions of the Housing Act 1996 were incompatible with the Convention.
• Epsom County Court: His Honour Judge Cook, on 11 January 2001, made a possession order, holding that there was no reasonable prospect that the mandatory introductory-tenancy provisions were affected by the Convention or the Human Rights Act 1998.