Holley v Hillington LBC

The Court of Appeal dismissed the appellant's challenge to a possession order made against him as a trespasser occupying a former secure tenancy. The court held that Article 8 ECHR was engaged but that the appellant's Article 8 proportionality defence was not seriously arguable: long residence alone was of little weight in a second‑succession context and the appellant's mental health did not make eviction disproportionate. The court also rejected the public law challenge that the council's allocation/succession policy unlawfully fettered discretion or that a residual discretion had been ignored, holding that even if no residual discretion had been exercised the outcome would inevitably have been the same because of the acute scarcity of appropriately sized social housing and the council's legitimate prioritisation scheme.

Background and facts:

• The appeal arose from a possession order made by HHJ Karp on 2 January 2014 in the County Court at Willesden against Mr Anthony Holley (and his brother). The property had been a secure tenancy of the appellant's grandmother and then her husband; statutory succession limits (sections 87 and 88 of the Housing Act 1985) meant the appellant had no right of succession and was treated as a trespasser.
• The appellant had lived at the property since birth and relied on Article 8 (right to respect for home) and Article 14 (age discrimination) as defences to possession; he also relied on his mental health. The council had an allocation scheme under Part VI of the Housing Act 1996 that contained a provision (paragraph 6.1.3) requiring an age criterion for second‑succession exceptions.

Procedural posture:

• The County Court determined as a preliminary issue that the appellant did not have seriously arguable defences under Articles 8 or 14 and made possession orders. Permission to renew and on a new public law ground (alleging unlawful fettering or failure to exercise a residual discretion in the allocation policy) was given orally by Elias LJ; the public law complaint was heard by the Court of Appeal de bene esse.

Issues framed:

1. Whether eviction of a non‑statutory successor with long residence and mental health difficulties was a disproportionate interference with Article 8 rights;
2. Whether the council had discriminated contrary to Article 14 on grounds of age by rigidly applying its allocation succession criterion;
3. Whether the council's succession/allocation policy unlawfully fettered discretion or failed to consider any residual discretion to make an exception in the appellant's case.

Court's reasoning and conclusion:

• On Article 8 the court applied the principles from Pinnock and Powell and the earlier Court of Appeal decision in Thurrock v West. The court held that while Article 8 is engaged, the statutory bar on second succession limits the weight to be given to long residence; long residence is relevant to show a home exists but is unlikely to be decisive in second‑succession cases. The appellant's medical condition and lifetime residence, separately and in aggregate, did not make eviction disproportionate and the judge was plainly right to find no real prospect of success.
• On the public law complaint the court explained the distinction between Part IV succession rules (which do not permit second succession as of right) and Part VI allocation schemes (which may include discretion). The allocation scheme's section 8.4.3 arguably contained residual discretion, but the court did not need to decide that point. Even if no residual discretion had been afforded, the council produced uncontested evidence of acute shortage of three‑bed properties and of many higher priority applicants; on the facts the appellant would not have been given the tenancy even if a residual discretion had been invoked. The public law ground therefore failed.

Relief sought:

• The appellant sought to resist possession and, in effect, to be treated as deserving of a secure tenancy or exceptional allocation.

The appeal is dismissed. The Court of Appeal upheld the judge's finding that the appellant's Article 8 defence was not seriously arguable because long residence and his mental health did not render eviction disproportionate in the second‑succession context. The court also dismissed the public law challenge that the council unlawfully fettered or failed to exercise a residual discretion, concluding that even if no discretion had been applied the same result would inevitably have followed given the acute scarcity of suitable social housing and the council's legitimate prioritisation.

Appeal from Willesden County Court and Family Court (HHJ Karp, case no. 2UB00871), possession order made 2 January 2014. Permission to renew and on a public law ground granted orally by Elias LJ on 13 November 2014. Appeal heard in the Court of Appeal, neutral citation [2016] EWCA Civ 1052 (B5/2014/0195).