Birmingham City Council v Lloyd

A person with no domestic-law right to remain in a home may in principle rely on Article 8 of the European Convention on Human Rights to resist possession. However, the threshold is exceptionally high where the person entered and has always remained as a trespasser.

In such cases, substantial weight must be given to a local authority’s housing-management and allocation functions. The court should not substitute its assessment of who should receive public housing. Personal hardship, difficulty finding alternative accommodation, and the absence of nuisance or criminal conduct will not ordinarily make eviction disproportionate.

A court should identify the factual grounds of an Article 8 defence at an early stage and determine whether, assuming them true, it has a real prospect of justifying refusal of possession.

The Council granted a secure tenancy of a flat to the respondent’s brother. After the brother died, the respondent moved into the flat without consent while still holding another Council tenancy. He later ended that tenancy after seeking to succeed to his brother’s flat.

The Council declined to grant him a tenancy, determined the deceased tenant’s continuing tenancy, and brought possession proceedings. The respondent accepted that he was a trespasser but contended that eviction would disproportionately interfere with his Article 8 right to respect for his home.

Mr Recorder Del Fabbro refused possession on 10 November 2011. He relied on the respondent’s depression, housing and financial difficulties, his business, the circumstances in which he relinquished his former tenancy, and his good conduct. The Council appealed. The central issue was whether those matters could make possession against a lifelong trespasser disproportionate under Article 8.

1. Appeal allowed. Lord Neuberger MR, with whom Longmore and Gross LJJ agreed, held that the Recorder had been wrong to refuse possession.

2. Article 8 may in principle be invoked by an occupier who lacks a domestic right to remain. But [2010] UKSC 45 and [2011] UKSC 8 showed that a proportionality defence will rarely succeed. The required circumstances are more exceptional still where the occupier entered as a trespasser and has never had a contractual or statutory right to occupy. The respondent fell well short of that threshold.

3. Great weight had to be given to the Council’s responsibility to manage and allocate its housing stock. The court was not equipped to decide how that stock should be allocated and should ordinarily proceed on the basis that the authority had sound housing-management reasons for seeking possession. Refusing possession here would improperly displace that function.

4. The Recorder’s factors did not establish disproportionality. The asserted effect on depression lacked evidential support and the condition appeared to be in abeyance. Difficulty obtaining alternative accommodation was a minor factor because Article 8 protects respect for the present home; it does not impose a duty to secure another home. The business concerns were marginal. The Council’s warnings meant that any expectation of succession could rise no higher than a possibility, and the respondent’s absence of nuisance or criminal conduct merely removed a factor that might otherwise have counted against him.

5. The court further explained that, when an Article 8 defence is raised in the possession list, the district judge should identify its factual grounds and ask whether, assuming them true, it has a real prospect of succeeding. On that approach this defence should have been rejected without a trial.

• Court of Appeal (Civil Division): Allowed the Council’s appeal and held that the Article 8 defence could not justify refusal of possession.

• Birmingham Civil Justice Centre: Mr Recorder Del Fabbro refused the Council’s possession claim on 10 November 2011, holding that eviction of the respondent, although a trespasser, would be disproportionate under Article 8.