Kensington and Chelsea v O'Sullivan & Anor

An occupier’s home may engage Article 8 even where the occupier has no tenancy, but Article 8 does not itself confer a right to be provided with a home. An Article 14 complaint must fall within the ambit of a substantive Convention right, involve different treatment of persons in an analogous situation, and lack objective and reasonable justification. A public authority may discriminate through a sex-based assumption without an express request. However, a positive obligation to protect a home requires a fair balance between individual and community interests. In ordinary possession proceedings, the statutory housing scheme normally supplies the Article 8(2) balance where the authority has acted fairly and reasonably. Individual “micro” proportionality review should not create security of tenure, except in rare exceptional circumstances.

The respondent local authority sought possession of a five-bedroom property occupied by the appellant, who was the wife of the former sole secure tenant. The husband validly terminated the tenancy and obtained a new tenancy of smaller accommodation. The appellant remained in occupation and became a trespasser, although the property was accepted to be her home for Article 8 purposes.

The authority’s Housing Allocation Scheme allowed an eligible remaining joint tenant to receive a new tenancy or transfer without first entering temporary accommodation, but contemplated only one new tenancy. The Central London County Court made a possession order and rejected the appellant’s Articles 8 and 14 arguments. The appeal concerned whether historic sex-based tenancy practices and the authority’s subsequent policy made possession discriminatory or disproportionate.

1. The appeal was dismissed. Lady Justice Arden delivered the principal judgment; Lord Justice Waller agreed and Lord Justice Aldous agreed with Lord Justice Waller’s reasons.
2. For Article 14, the court adopted the structured approach in Wandsworth LBC v Michalak [2002] 4 All ER 1136: ambit of a substantive Convention right, different treatment, analogous comparators, and objective and reasonable justification. Article 14 did not require a separate breach of Article 8, but the complaint had to fall within Article 8’s ambit. Article 8 was not engaged when the tenancy was offered in 1970, so a person offered a joint tenancy at that time was not an appropriate comparator.
3. A public authority could discriminate by making a sex-based assumption, even without an express request for a joint tenancy. Nevertheless, the proposed positive obligation to identify all cohabiting partners and offer joint tenancies would impose an excessive practical burden and would not fairly balance individual and community interests. The authority also had no obligation to treat the appellant as a remaining joint tenant unless it knew that she occupied the property before transferring the tenancy. It acquired that knowledge too late.
4. The appropriate comparator was a joint tenant remaining in occupation after the other spouse had terminated the tenancy and obtained a transfer to another property. Since the policy permitted only one new tenancy, the appellant was not treated differently from a person in that analogous position. There was therefore no violation of Article 14.
5. On Article 8 alone, Sheffield City Council v Smart [2002] HLR 639 and Michalak established that, where the authority acted fairly and reasonably under the statutory housing scheme, the legislative balance ordinarily satisfied Article 8(2). The possession court should not conduct individual proportionality review which undermined the statutory scheme. A rare residual jurisdiction remained, including where there was a real prospect of success on an Article 8 and Article 14 argument or an exceptional post-notice event fundamentally altering the rights and wrongs of eviction. The threshold was met, but the argument failed on its merits.

The possession order was upheld. Execution was stayed until 15 April 2003.

• Court of Appeal (Civil Division) — On 25 March 2003, the appeal was dismissed. The order for possession was not to be executed before 15 April 2003.
• Central London County Court — His Honour Judge Green QC made an order for possession on 27 February 2002 and rejected the appellant’s Articles 8 and 14 objections.