Sheffield City Council v Smart

An order evicting a non-secure tenant from settled accommodation provided under the homelessness legislation is a prima facie interference with the right to respect for the home under article 8(1). Ordinarily, however, article 8(2) does not require a court to reconsider the proportionality of eviction on the individual merits. Parliament has substantially struck that balance through the statutory scheme.

The authority must act fairly, reasonably and in conformity with the scheme. A court may address a Convention defence in possession proceedings where a wholly exceptional post-notice event fundamentally alters the position. The Human Rights Act 1998 qualifies common-law causes of action and does not confine such issues to judicial review.

These conjoined appeals arose from possession orders made by Sheffield County Court and Sunderland County Court. Each appellant had been granted a non-secure tenancy after the relevant housing authority accepted a duty to accommodate her as unintentionally homeless under Part VII of the Housing Act 1996. Following complaints of nuisance, each landlord served a notice to quit and obtained possession.

The tenants contended that articles 6 and 8 of the European Convention on Human Rights required a court to determine whether eviction was necessary and proportionate on the facts of each case. They also relied on article 14 and article 1 of the First Protocol. The central issue was whether article 8 required an individual merits assessment despite the statutory policy that accommodation supplied to homeless applicants carried no security of tenure.

1. The appeals were dismissed unanimously. Laws LJ delivered the judgment, with which Kay and Thorpe LJJ agreed. The county court orders for possession remained effective.

2. The accommodation occupied under section 193 of the Housing Act 1996 was each tenant's home. Whether premises constitute a home for article 8 depends on the factual existence of sufficient and continuous links, rather than domestic proprietary status. An eviction order therefore constituted a prima facie interference with the right to respect for the home under article 8(1).

3. Article 8(2) did not ordinarily require a county court to conduct a fresh, fact-specific assessment of whether eviction was proportionate. Parliament had deliberately provided that a tenancy granted in performance of the homelessness duty was non-secure unless the authority notified the tenant otherwise. Requiring routine individual proportionality adjudication would substantially convert such tenancies into secure tenancies and disrupt the legislative scheme.

4. The statutory balance nevertheless did not confine judicial scrutiny rigidly to traditional irrationality review. The housing authority had to act fairly and reasonably in conformity with the statutory scheme and comply with applicable formal and procedural requirements. Judicial review after the commencement of the Human Rights Act 1998 necessarily includes review for compliance with Convention rights. Its intensity varies according to the subject matter and the right affected.

5. A rare case might arise in which a wholly exceptional event occurring after service of the notice to quit fundamentally altered the merits of eviction. The trial judge would then have to determine any article 8(2) defence. Sections 6 and 8 of the Human Rights Act 1998 qualify common-law causes of action; Convention questions are not confined to separate judicial review proceedings. No such exceptional matter arose here.

6. Article 6 was satisfied because the county court could determine the landlord's entitlement and procedural compliance, while judicial review could examine the legality of the authority's administrative decision with the breadth required by the Convention. Article 1 of the First Protocol was not infringed because the tenancies included the landlord's right to recover possession after a valid notice. Article 14 added nothing because there was no discrimination between comparable cases.

1. Court of Appeal (Civil Division): In [2002] EWCA Civ 4, unanimously dismissed both tenants' appeals and refused permission to appeal to the House of Lords.
2. Sheffield County Court: HH Judge Bartfield made a possession order against Emma Smart on 7 June 2001 and granted permission to appeal.
3. Sunderland County Court: HH Judge Walton made a possession order against Janette Wilson on 24 September 2001 and refused permission to appeal. Robert Walker LJ granted permission on 6 November 2001.