Mays, R (on the application of) v Brent

Where a public authority has a statutory power to recover possession of a home, the existence of an interference with Article 8 does not automatically require an individual merits assessment before possession proceedings are begun. A statutory scheme may itself provide sufficient justification, particularly where it deliberately excludes the claimant from succession and the authority faces substantial housing pressures. The authority must nevertheless exercise its discretion lawfully and proportionately. Judicial review is the appropriate route for challenging that decision where the county court’s statutory powers prevent it from refusing possession or granting more than a short suspension. Exceptional cases may arise where applying the policy would be unjustified or legally erroneous.

The claimant had lived for more than 20 years in a house let to her deceased mother by the defendant local authority. After her mother’s death, the claimant applied to succeed to the tenancy. The authority concluded that the tenancy had ended when a suspended possession order was breached, relying on Brent London Borough Council v Knightley 29 HLR 857, and began possession proceedings.

The claimant sought judicial review, contending that the authority had failed to consider whether eviction would be disproportionate under Article 8 of the Convention and had acted unfairly by failing to consider her individual circumstances. The central issue was whether the statutory succession and possession scheme justified the authority’s decision without a separate case-specific balancing exercise.

1. Claim dismissed. The authority’s decision to seek possession was proportionate and lawful.
2. Removal from premises occupied for a substantial period may interfere with Article 8(1), because a home depends on sufficient and continuous links rather than lawful occupation alone. The procedural safeguards required by Article 8 may be supplied through judicial review of the public authority’s decision. The county court could not provide an effective alternative remedy because section 89 of the Housing Act 1980 restricted it to granting possession and, in exceptional circumstances, suspending the order for no more than six weeks.
3. The statutory succession scheme, including its common-law consequences, deliberately excluded succession where the existing tenancy had ended. It would frustrate that scheme if every non-successor’s personal circumstances had to be balanced against the authority’s general housing pressures before possession was sought.
4. Brent had considered the application on the proper basis. Its recognition that possession was legally available, together with the serious shortage of accommodation, under-occupation of the four-bedroom property and its housing duties to other applicants, was sufficient to make the decision proportionate. The claimant’s likely entitlement to suitable accommodation under the homelessness legislation was also relevant.
5. The court recognised that exceptional circumstances might make application of the policy unjustified or erroneous in law. This was not such a case. Leave to appeal was refused.