Coombes, R (on the application of) v Secretary of State for Communities & Local Government & Anor

A statutory possession scheme is not incompatible with Article 8 merely because it prevents a court from considering an occupier’s personal circumstances as a free-standing defence. Under Kay and Doherty, an occupier may challenge the compatibility of the governing law itself, or may contend that the public authority’s decision to seek possession was unlawful on public law grounds. The latter review may take account of personal circumstances and the length of occupation, but the court must not substitute its own view for that of the authority. The High Court is bound by those domestic authorities despite conflicting Strasbourg jurisprudence. Access to the county court and the High Court for determination of domestic rights satisfies Article 6.

The claimant had lived in a council flat with his parents since childhood. After his mother’s death, he did not qualify to succeed to the secure tenancy. The council served notice to quit and commenced possession proceedings in the Bow County Court. The proceedings were transferred to the Administrative Court to determine the claimant’s counterclaim for a declaration that section 3 of the Protection from Eviction Act 1977, together with related housing legislation, was incompatible with Articles 8 and 6 of the Convention.

The central issue was whether the statutory scheme unlawfully prevented the county court from assessing the proportionality of eviction by reference to the claimant’s personal circumstances.

1. Claim dismissed. Section 3 of the Protection from Eviction Act 1977 merely requires a property owner to obtain a court order before recovering possession. It does not itself create an incompatibility with Article 8.
2. Under Kay and Doherty, an Article 8 challenge may proceed through two gateways. First, a seriously arguable challenge may be made to the compatibility of the law under which possession is sought. The legislation governing succession to local authority tenancies had already been held to strike the necessary balance between competing housing needs. This was not an exceptional case outside the range of democratic solutions contemplated by the House of Lords.
3. Secondly, the occupier may challenge the authority’s decision to seek possession on public law grounds. That review is not confined formalistically to traditional Wednesbury grounds. It may consider whether the decision was reasonable having regard to the authority’s aim and the occupier’s length of residence and personal circumstances. The court must nevertheless review the authority’s decision and must not substitute its own view.
4. The Strasbourg decisions, including McCann and its subsequent cases, indicated that proportionality should in principle be capable of determination by an independent tribunal. That approach conflicted with the domestic law stated in Kay and Doherty. The High Court was bound by the House of Lords and could not make a declaration of incompatibility on that basis.
5. Article 6 was satisfied because the claimant had access to the High Court and the county court for determination of rights arising under domestic law. The claim for a declaration of incompatibility was dismissed. The defendants were awarded their costs, subject to the usual order concerning the legal aid certificate. Permission to appeal was granted because of the compelling public importance of the issue, although there was no real prospect of success in that court.

The claim was transferred from possession proceedings in Bow County Court to the Administrative Court for determination of the Convention compatibility issue. The Administrative Court dismissed the claim and granted permission to appeal on public importance grounds.