West Law Report

Council’s short-cut violated right to respect for tenant’s home

From The TimesMay 23, 2008

Council’s short-cut violated right to respect for tenant’s home
European Court of Human Rights
McCann v United Kingdom (Application No 19009/04)
Before L. Garlicki, President, and Judges Sir Nicolas Bratza, G. Bonello, L. Mijovic, D. Thór Björgvinsson, J. Šikuta and P.Hirvelä
Section Registrar L. Early
Judgment May 13, 2008

A local authority which bypassed the statutory scheme for evicting a tenant, had violated his right to respect for the home, as guaranteed by article 8 of the European Convention on Human Rights, when the summary procedure used had not provided appropriate procedural safeguards.

The European Court of Human Rights so held, unanimously, finding that a joint tenant had been dispossessed of his home without any possibility of having the proportionality of that measure determined by an independent tribunal.

The applicant, Gerrard McCann, was a British national who was born in 1968 and lived in Birmingham. Mr McCann and his ex-wife were secure tenants, under the Housing Act 1985, of a three-bedroom house belonging to Birmingham City Council.

The marriage broke down and, in April 2001, Mrs McCann asked to be re-housed on the ground of domestic violence. In August 2001 she and the children moved into another council house allocated to them in accordance with the local authority’s domestic violence policy. She informed the local authority that she was giving up the tenancy and returned the keys of the house. As far as the local authority was concerned, the three-bedroom house was from then on uninhabited.

In November 2001, however, the applicant moved back into the vacant house and did a considerable amount of work to renovate it.

His relationship with Mrs McCann improved and she supported his application for an exchange of accommodation with another local authority tenant, as the three-bedroom house was too big for him but he still required a home in the area so that his children could visit.

In January 2002, a housing officer, having realised that the property was not in fact empty, and having taken legal advice, visited Mrs McCann and asked her to close the tenancy by signing a notice to quit. The effect of that notice under domestic law was to bring an end to the tenancy. Mrs McCann signed the notice but, a week later, requested for it to be withdrawn.

In June 2002, the local authority decided, among other things, that in accordance with the domestic violence policy, the applicant would not be granted the right to accede to the former tenancy of the house and that, in any event, he had no dependants living with him and would not therefore qualify for such a dwelling.

In April 2003, the local authority’s claim for possession against the applicant was dismissed. The county court judge found that Mrs McCann had not been advised and had not understood that the notice to quit would effectively remove her ex-husband’s right to live in the house or exchange it for another local authority property.

On appeal, however, it was found that the local authority had acted lawfully and that the notice to quit was effective despite it having been signed without an understanding of its consequences. That decision was upheld in judicial review proceedings brought by the applicant and again on appeal.

In its judgment, the Court held:

Relying, in particular, on article 8 of the Convention, protecting the right to respect for private and family life, the applicant complained about the eviction proceedings brought against him by Birmingham City Council.

He alleged, in particular, that in asking his ex-wife to sign a notice to quit, the local authority gave no consideration to his relationship with his children who stayed with him three nights a week.

Alleged violation of article 8

The Court found, as also accepted by the British courts and the parties, that the council house formerly occupied by the applicant with his ex-wife as a joint tenant and where he had lived on his own from November 2001, had continued to be his home, under article 8.1.

It was also agreed that the notice to quit, together with the possession proceedings, had amounted to an interference with the applicant’s right to respect for his home.

The Court considered that that interference had been in accordance with the law and had pursued the legitimate aim of protecting the local authority’s right to regain possession of property from an individual who had no contractual or other right to be there. It also aimed to ensure that the statutory scheme for housing provision was properly applied.

The Court noted that any person at risk of losing his home, which was a most extreme form of interference with the right to respect for one’s home, should be able to have the proportionality of the measure determined by an independent tribunal, even if, under domestic law, the right of occupation had come to an end.

The legislature in the United Kingdom had set up a complex system for the allocation of public housing which included, under section 84 of the Housing Act 1985, provisions to protect secure tenants with public authority landlords.

Had the local authority sought to evict the applicant in accordance with that statutory scheme, it would have had to apply for a possession order and, in those proceedings, the applicant could have asked the court to examine his personal circumstances, including the need to provide accommodation for his children and whether his wife had really left the family home because of domestic violence.

However, the local authority had chosen to bypass that statutory scheme by asking Mrs McCann to sign a common law notice to quit, which had resulted in the termination of the applicant’s right, with immediate effect, to remain in the house. The authority, in the course of that procedure, had not given any consideration to the applicant’s right to respect for his home.

Nor had the ensuing possession proceedings or judicial review proceedings provided any opportunity for an independent tribunal to examine whether the applicant’s loss of his home had been proportionate to the legitimate aims pursued.

The Court therefore concluded unanimously that, under the summary procedure available to a landlord where one joint tenant served notice to quit, the applicant had been dispossessed of his home without any possibility to have the proportionality of that measure determined by an independent tribunal, in violation of article 8.

Application of article 41

The Court awarded the applicant €2,000 in respect of non-pecuniary damage and €75,000, less €850 in legal aid paid by the Council of Europe, for costs and expenses.

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