Holley & Anor v London Borough of Hillingdon

In a possession claim against a person with no right to a second succession, long residence may engage Article 8 and form part of the proportionality assessment. It cannot, without more, establish a proportionality defence. Parliament’s lawful restriction of succession means that residence will usually carry limited weight against a local authority’s property rights and duties to manage scarce social housing.

A provision for exceptional consideration within an allocation scheme concerns allocation, not a discretionary right of succession. Even if a scheme or decision-making process failed to preserve or consider a residual discretion, the defect is immaterial where the authority shows that a lawful process would inevitably have produced the same outcome.

The respondent local authority obtained possession of a three-bedroom social house from Mr Holley and his brother. Mr Holley had lived there since birth. His grandmother had been the secure tenant and his grandfather had succeeded to that tenancy. On the grandfather’s death, Mr Holley had no statutory right to a further succession.

HHJ Karp, sitting in the County Court at Willesden, determined preliminary issues and held that defences under Articles 8 and 14 were not seriously arguable. The Article 14 point was not pursued. Mr Holley appealed under [2016] EWCA Civ 1052, contending that his lifetime residence and mental health made eviction disproportionate under Article 8. He also advanced a public law challenge that the council’s allocation scheme unlawfully fettered, or failed to exercise, a residual discretion to make an exceptional allocation.

1. Appeal dismissed. The judge was right to hold that the Article 8 defence had no real prospect of success.

2. Length of residence has two distinct functions. A claimant relying on Article 8 must ordinarily show sufficient residence for the dwelling to be their home. But, in a second-succession case, however long the residence, it cannot by itself found a proportionality defence. To hold otherwise would undermine the Convention compatibility of Parliament’s restriction on further succession under the Housing Act 1985.

3. Length of residence may nevertheless be assessed with all the circumstances. Its weight will normally be slight because Parliament has lawfully confined succession, while the authority has weighty interests in vindicating its property rights and allocating scarce social housing. The appellant’s mental health difficulties and lifetime residence, separately and together, were unexceptional. The evidence did not show that moving home would seriously worsen his condition or impair access to treatment. Eviction was therefore plainly proportionate.

4. The alleged discretion was not a discretionary succession policy. Part IV of the Housing Act 1985 neither gives nor permits a right to a second succession. The relevant provision in the council’s scheme was instead one part of an allocation scheme under Part VI of the Housing Act 1996.

5. The court did not decide whether the scheme contained a sufficiently general residual discretion, or whether such discretion was required. Assuming both that it did not and that the council had failed to consider it, the challenge failed. A public authority may show that a procedurally lawful process would inevitably have produced the same result. Acute demand for three-bedroom housing, and the appellant’s lack of an exceptional housing need, meant that he had no real prospect of receiving an exceptional allocation. Permission to amend the appellant’s notice was granted, but that ground was also dismissed.

• Court of Appeal (Civil Division) — dismissed the appeal: [2016] EWCA Civ 1052.
• County Court at Willesden — on 2 January 2014 HHJ Karp made a possession order after determining that the proposed Article 8, Article 14 and notice-to-quit defences were not seriously arguable.