Bradney & Anor v Birmingham City Council & Anor

Article 8 cannot be used as a defence to possession proceedings where a local authority has an ordinary domestic-law right to immediate possession, even if the property is the occupier’s home. Applying Qazi v London Borough of Harrow [2003] 3 WLR 792, the Court held that a valid notice to quit by one joint tenant terminated the tenancy and left the remaining occupier without a right to remain. Allegations that the authority obtained the notice without the departing tenant understanding its consequences did not create a defence. Only wholly exceptional public-law circumstances could alter the position. Section 82 of the Housing Act 1985 did not apply where the secure tenancy had ended by the tenant’s notice to quit.

These conjoined appeals concerned Birmingham City Council’s claims for possession of residential properties after joint tenancies had ended through notices to quit signed by departing joint tenants. In Bradney, HHJ Frances Kirkham made a possession order on 6 March 2003. In McCann, HHJ Durman dismissed the Council’s possession claim on 15 April 2003, relying on Article 8.

The occupiers accepted that they had no continuing tenancy or other domestic-law right to remain, but argued that the properties were their homes. Following the House of Lords’ decision in Qazi v London Borough of Harrow [2003] 3 WLR 792, the central issues were whether Article 8 could provide a defence, whether the Council’s conduct in obtaining the notices was unlawful or exceptional, and whether section 82 of the Housing Act 1985 governed the McCann possession claim.

Bradney’s appeal was dismissed. The Council’s appeal in McCann was allowed and an order for possession was made.

1. The court followed the bare majority ruling in Qazi v London Borough of Harrow [2003] 3 WLR 792. Continued occupation may make premises the occupier’s home for Article 8, but Article 8 is unavailable as a defence to proceedings enforcing a local authority’s ordinary domestic-law property rights against a person with no right to possession. It followed that no Article 8(2) justification or proportionality inquiry arose.
2. In Bradney, the notice to quit was valid under the law of landlord and tenant. It terminated the joint tenancy and Mr Bradney’s right to remain. The Council was entitled to rely on the termination and seek immediate possession. Its conduct in obtaining the notice was neither outside its powers nor an abuse of power. The circumstances were not wholly exceptional, and no judicial review challenge had been brought.
3. The same reasoning applied in McCann. The domestic-violence background and Mrs McCann’s lack of understanding of the notice’s consequences did not invalidate the notice to quit. The Council had acted lawfully and within its powers. Section 82 of the Housing Act 1985, which provides a procedure for termination by the local-authority landlord, did not apply where the secure tenancy had already been terminated by the tenant’s effective notice to quit.
4. The Bradney possession order was suspended until 16 January 2004. The McCann possession order was likewise suspended until that date. Costs orders were made subject to detailed assessment, and permission to appeal to the House of Lords was refused or dismissed.

• Court of Appeal (Civil Division) — On 9 December 2003, Bradney’s appeal was dismissed and the Council’s appeal in McCann was allowed: [2003] EWCA Civ 1783.
• Birmingham County Court — HHJ Frances Kirkham made a possession order in Bradney on 6 March 2003. HHJ Durman dismissed the Council’s possession claim in McCann on 15 April 2003.