Erskine, R (on the application of) v Lambeth & Anor

Article 14 has no independent existence, but may apply where the facts fall within the ambit of another Convention right. For legislation, that connection depends on both its purpose and its effect. Part VI of the Housing Act 1985, including section 189, was directed principally to public health and improvement of low-cost housing, rather than protection or promotion of individual Article 8 rights. It therefore fell outside Article 8’s ambit. Differences between the enforcement regimes for local-authority tenants and other tenants consequently did not engage Article 14. The condition of the kitchen also did not directly interfere with the claimant’s Article 8 rights.

The claimant was a secure tenant of a council maisonette occupied by herself and her two children. The kitchen had adequate cooking facilities, but its electrical sockets required appliances to be powered through an unsafe gang socket and other extension arrangements. The council accepted that it had no repairing obligation to move or add sockets, although it had power under section 9(2) of the Housing Act 1985 to improve the flat.

The claimant argued that the statutory enforcement regime for unfit housing unlawfully discriminated against council tenants, contrary to Articles 8 and 14 of the Convention, because a council tenant could not invite the authority to serve a repair notice on itself. The court also considered whether the kitchen directly infringed Article 8.

1. The claim for a declaration of incompatibility was dismissed. Part VI and section 189(1) of the Housing Act 1985 were declared compatible with the Convention.

2. Article 14 has no independent existence, but its application does not require a breach of the substantive right. The facts must nevertheless fall within the ambit of a Convention right. The court preferred the approach in Rasmussen v Denmark, [1984] 7 E.H.R.R. 371, Abdulaziz v United Kingdom, [1985] 7 E.H.R.R. 471, and Petrovic v Austria, [2001] 33 E.H.R.R. 14, to the wider formulation referred to in Ghaidan v Godin-Mendoza, [2003] 2 W.L.R. 478.

3. For legislation, whether a measure falls within the ambit of Article 8 depends on its purpose as well as its effect. A test based only on a real and practical connection would subject extensive legislation to an Article 14 audit with potentially far-reaching consequences.

4. The kitchen’s condition did not directly infringe Article 8. There were adequate facilities for preparing and cooking food, and the immediate risk resulted from the claimant’s arrangements for supplying appliances with electricity. The authorities, including Chapman v United Kingdom, [2001] 33 E.H.R.R. 399, and Marzari v Italy, [1999] 28 E.H.R.R. CD 175, confirm that Article 8 does not guarantee that housing problems will be solved by public authorities.

5. The court declined to determine whether the flat failed the statutory fitness test in section 604(1)(f). It held that Part VI and section 189 were enacted principally to protect public health and improve low-cost housing stock, not to protect or promote individual Article 8 rights. The different enforcement arrangements therefore did not fall within Article 14.

6. The council was invited to decide whether to exercise its improvement power under section 9(2), after inspecting the premises and considering whether the electrical arrangements were unique to the flat or common throughout the block. The court did not prejudge that decision. Permission to appeal was granted, and the usual costs order was made, not to be enforced.

This was a first-instance judicial review. The court granted permission to appeal after judgment.