Defence Estates v JL & Anor

Where a public authority has an unqualified domestic-law right to possession, an occupier’s personal circumstances will rarely justify refusing possession under Article 8. The principal challenge is to the authority’s decision to seek possession, which succeeds only where the decision was one that no reasonable authority could have made on the facts known, or which ought to have been known, at the time. Personal disability does not ordinarily make possession proceedings irrational, although the authority may need to assist in securing suitable alternative accommodation. The court must make the possession order where domestic law requires it, subject only to the statutory power to suspend execution. A disability equality duty does not create a defence allowing an occupier to remain indefinitely without security of tenure.

Defence Estates sought possession of premises occupied by JL and her family. The occupation arose from accommodation formerly provided because of her husband’s Army service and continued for many years without a secure tenancy, the premises falling within paragraph 11 of Schedule 1 to the Housing Act 1988. JL relied on Article 8, public-law irrationality, and the disability equality duty under section 49A of the Disability and Discrimination Act 1995. The claim had begun in the County Court and was transferred to the Administrative Court because the Convention issues required consideration by the High Court.

1. Possession and Article 8. The claimant’s right to possession was unqualified because the tenancy could not be assured under paragraph 11 of Schedule 1 to the Housing Act 1988. Following Kay v Lambeth [2006] 2 AC 465, Doherty v Birmingham City Council [2008] 3 WLR 636 and Doran v Liverpool City Council [2009] EWCA Civ 146, the court had to make the possession order unless a seriously arguable challenge was made to the compatibility of the governing law or to the public-law rationality of the decision to seek possession.
2. The public-law challenge was subject to the high test that the decision must be one which no reasonable authority would have made in the circumstances known, or which ought to have been known, when the decision was taken. The authority was not required to undertake an exhaustive inquiry into personal disabilities before commencing proceedings. The claimant’s delays and misleading presentational references to rent arrears and repairs were unacceptable, but the evidence established a genuine current need for the accommodation.
3. The claimant’s duty was to assist, so far as able, in securing suitable alternative accommodation. That duty did not confer security of tenure or a right to remain indefinitely. Article 8 did not provide a positive right to be housed, and the Ministry’s operational need for the accommodation ultimately outweighed the defendant’s Convention rights.
4. Section 49A of the Disability and Discrimination Act 1995 required due regard to disability, but did not enable a person otherwise lacking a defence to possession to remain in occupation. The statutory scheme placed the relevant rehousing obligation on the local authority.
5. The court made a possession order suspended for six weeks. The claim for damages was dismissed because the claimant’s own conduct had prevented payment of the sums claimed from being treated as rent. The claimant received its assessed costs subject to the usual legal-aid restrictions.

The claim was commenced in the Leeds County Court on 26 June 2007. It was transferred to the Administrative Court by order of HHJ Grenfell dated 22 November 2007 because the defence raised Convention issues. An interlocutory refusal of permission to appeal concerning expert evidence was not the decision under review. The present court determined the possession claim at first instance.