Kensington and Chelsea v O'Sullivan & Anor

The Court of Appeal dismissed the appellant's challenge to an order for possession of 28 Bracewell Road, holding that an order for possession did not violate the appellant's rights under Article 8 of the European Convention on Human Rights, whether read alone or in conjunction with Article 14. The court applied the framework in Wandsworth LBC v Michalak and Sheffield City Council v Smart and held that Parliament's housing scheme and the respondent's Housing Allocation Scheme (adopted under section 167 of the Housing Act 1996) had already struck the balance required by Article 8(2). The court found no established discrimination under Article 14 because the respondent acted without knowledge that the appellant was resident and there was no positive obligation to treat the appellant as if she had been a joint tenant.

The court also relied on statutory constraints on the county court's powers (section 3 of the Protection from Eviction Act 1977 and section 89 of the Housing Act 1980) and concluded that the judge below was entitled to find that the respondent had acted reasonably, that there was no arguable incompatibility with domestic legislation, and that exceptional circumstances justifying refusal of possession were not shown.

Background and procedural posture

This is an appeal from the Central London County Court (His Honour Judge Green QC) against an order for possession of a five‑bedroom house. The appeal was limited by permission to issues under Articles 8 and 14 of the European Convention on Human Rights. The appellant (Mrs O'Sullivan) occupied the property as licencee and later as a trespasser after her husband (H) validly gave notice to quit in 2001 and the respondent (the Royal Borough of Kensington and Chelsea) transferred a new tenancy to H.

Facts

• In 1970 the tenancy was granted to H alone; that tenancy later became a secure tenancy under the Housing Act 1985.
• The appellant lived at the property for long periods and the court accepted that for Article 8 purposes the property had been her home at all material times.
• H gave valid notice to quit in March 2001 and the respondent, believing the appellant was not resident, granted H a new tenancy elsewhere.
• The respondent's Housing Allocation Scheme contained a policy limiting transfer/rehousing to one tenancy where a joint tenancy had been terminated and excluding use of discretion where the remaining tenant had been violent to the departing tenant.

Nature of the claim and issues

• The respondent sought possession; the appellant resisted on Article 8 (respect for the home) and Article 14 (prohibition of discrimination) grounds.
• Key issues were (i) whether Article 14 was engaged and, if so, whether there had been unlawful discrimination arising from historical practice of granting tenancies to husbands alone; (ii) whether Article 8(2) permitted possession given the legislative and allocation‑scheme context; and (iii) whether any positive obligation arose on the respondent to have treated the appellant as if she were a joint tenant.

Court's reasoning

• The court accepted that Article 8 was engaged because the property was the appellant's home. It applied the Michalak and Smart authorities to hold that, generally, the legislative scheme and allocation policies provide the balancing exercise required by Article 8(2), leaving only rare or exceptional cases for individual judicial scrutiny at trial.
• On Article 14, the court examined comparator selection and timing. It held that a person offered a joint tenancy in 1970 could not be an appropriate comparator for an Article 14 complaint made after the property had become the appellant's home. The court found there was no evidential basis to conclude that the respondent had acted discriminatorily when the tenancy was granted in 1970 or thereafter: the respondent had assumed H was the sole occupant and did not know the true position until after transfer. The court rejected the existence of a sufficiently grounded positive obligation to have made proactive enquiries or to have treated the appellant as a remaining joint tenant.
• The court concluded there was no arguable breach of Article 8 taken with Article 14 and no ground to withhold a possession order under Article 8(2). It emphasised the availability of judicial review where a local authority policy is unfair, and recognised a narrow residual jurisdiction to consider exceptional facts at trial, but found no such exception in this case.

Result

The appeal was dismissed. The court affirmed the possession order subject to the stayed execution until a specified date and allowed the lower court's reasoning that the respondent had acted reasonably and in accordance with the statutory housing scheme.

Appeal dismissed. The Court of Appeal held that there was no violation of Article 8 taken alone or Article 8 read with Article 14. The respondent had acted reasonably and in conformity with the housing allocation scheme and statutory framework. No positive obligation arose to treat the appellant as if she had been a joint tenant, and the circumstances were not sufficiently exceptional to displace the statutory balance under Article 8(2).

On appeal from Central London County Court (His Honour Judge Green QC). Permission to appeal was granted; outcome at Court of Appeal recorded at [2003] EWCA Civ 371.