Kay and Doherty The Current Law

1
Kay and DohertyThe Current Law

• Wayne Beglan

2
Sequence of cases

• Qazi (HL)
• Connors (ECtHR)
• Kay (HL x7)
• McCann (ECtHR)
• Doherty (HL)
• Dixon (15 Jan 09, HC)
• Doran (3 March 09, CA)
• McGlynn (1 April 09, CA)
• Defence Estates (5 May 09, HC)
• Taylor (23 June 09, CA)
• Pinnock (31 July 09, CA)

3
Summary

• Gateway (a) seriously arguable point of
  incompatibility
• Gateway (b) seriously arguable extended
  irrationality
• highly exceptional Bingham minority in Kay

4
Kay

• 2006 UKHL 10 2006 2 AC 465 2006 2 WLR
  570 2006 4 All ER 194
• That the right of a public authority landlord to
  enforce a claim for possession under domestic law
  would, in most cases, automatically supply the
  justification required by article 8(2) for an
  interference with the occupier's right to respect
  for his home

5
Kay

• that the public authority was not required to
  plead or prove justification
• courts were to assume that domestic law struck
  the proper balance of the competing interests and
  was compatible with article 8

6
Kay

• that a challenge to the making of an order could
  be raised in the possession proceedings in the
  county court,
• so far as its jurisdictional limits permitted,
• if the defendant could, exceptionally, show a
  seriously arguable case that the relevant
  domestic law was incompatible with the Convention

7
Kay

• but that (Lord Bingham of Cornhill, Lord Nicholls
  of Birkenhead and Lord Walker of Gestingthorpe
  dissenting)
• where the requirements of the law had been
  satisfied and the right to recover possession was
  unqualified no challenge based only on a
  defendant's individual circumstances was
  permissible

8
Kay

• post, paras 28 -30 ,34 -36 , 39 ,50 , 53 -55 ,58
  -59 , 86 ,108 -111 , 172 ,174 -175 ,180 -183 ,
  185 ,188 , 192 , 198 ,200 , 203 , 212

9
110

• if the requirements of the law have been
  established and
• the right to recover possession is unqualified,
• the only situations in which it would be open to
  the court to refrain from proceeding to summary
  judgment and making the possession order are
  these

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Gateway (a)

• (a) if a seriously arguable point is raised that
  the law which enables the court to make the
  possession order is incompatible with article 8,
  the county court in the exercise of its
  jurisdiction under the Human Rights Act 1998
  should deal with the argument in one or other of
  two ways
• (i) by giving effect to the law, so far as it is
  possible for it do so under section 3, in a way
  that is compatible with article 8, or
• (ii) by adjourning the proceedings to enable the
  compatibility issue to be dealt with in the High
  Court

11
Gateway (b)

• (b) if the defendant wishes to challenge the
  decision of a public authority to recover
  possession as an improper exercise of its powers
  at common law on the ground that it was a
  decision that no reasonable person would consider
  justifiable, he should be permitted to do this
  provided again that the point is seriously
  arguable

12
Gateway (b)

• Seriously arguable
• Only applies to summary hearing
• Test at full hearing simply whether D is right to
  allege decision was one that no reasonable person
  would consider justifiable

13
Doherty

• 2009 1 AC 367 2008 3 WLR 636.
• In Doherty the House held that it would not
  overrule the majority in Kay they provided
  clarification
• Accordingly Kay remains the binding authority on
  the point, with such further explanation given in
  Doherty as it consistent with the majority view
  in Kay

14
Doherty Lord Hope 55

• I think that in this situation it would be unduly
  formalistic to confine the review strictly to
  traditional Wednesbury Grounds. The
  considerations that can be brought into account
  in this case are wider. 55
• Begs the question how much wider?

15
55

• An examination of the question whether the
  respondent's decision was reasonable, having
  regard to the aim which it was pursuing and to
  the length of time that the appellant and his
  family have resided on the site, would be
  appropriate.
• But the requisite scrutiny would not involve the
  judge substituting his own judgment for that of
  the local authority
• Length of time plainly capable of being a
  personal circumstance

16
55

• In my opinion the test of reasonableness should
  be, as I said in para 110 of Kay, whether the
  decision to recover possession was one which no
  reasonable person would consider justifiable.
• Italicised in Pinnock

17
Doherty Lord Scott

• para. 61 rejection of attempt to undermine Kay
  
• para. 66 para. 110 of Kay set out
• para. 79 rejection of attempt to incorporate
  security of tenure by the back door
• para. 85 requirement on judge is to review the
  lawfulness of the authoritys decision decision
  outside the range of reasonable responses may be
  quashed as erroneous in public law

18
Doherty Lord Rodger

• agreed with Lords Hope and Walker

19
Doherty Lord Walker

• para. 115 In common (as I understand it) with
  the rest of your Lordships I do not think,
  despite the decision in McCann, that it would be
  right for this Appellate Committee to depart from
  the decision recently arrived at in Kay by an
  Appellate Committee of seven members
• para. 117 the breach identified by the ECtHR in
  McCann was procedural
• para. 123 it is clear on a challenge under
  gateway (b) that the judge will in effect be
  hearing an application for judicial review on
  traditional judicial review grounds.

20
Doherty Lord Mance

• para. 134 recalling Dyson LJ recognising that a
  shift from conventional JR to a proportionality
  test could was a step that could only be taken by
  the House
• para. 135 noting proportionality not introduced
  by this case
• para. 140 under gateway (b) the only challenge
  is conventional judicial review

21
Dixon

• 2009 EWHC 27 Admin 2009 NPC 21 2009 LLTR
  (CA refused PtA)
• Challenge to the Monk rule in case of joint
  tenancy
• Joint tenancy terminated by Ts NTQ. D was found
  to have (in part class A) drug habit
• And gateway (b) challenge covered by earlier JR
  in Dixon No 1

22
Dixon 2

• Common law rule survived many housing
  re-enactments over more than 100 years - see Monk
• Other cases demonstrate the strength of the
  striking the balance point

23
Doran v Liverpool CC

• 2009 EWCA Civ 146
• Irish traveller on local authority pitch
• Counsels approach to gateway (b)
• LHA - new form of judicial review of uncertain
  dimensions, wider than judicial review as
  ordinarily understood but at the same time not
  extending to a full application of the
  Convention.
• SoS submitted that the effect of the
  clarification and modification in Doherty was far
  more limited. It was a modest development in the
  elucidation of domestic public law principles.
• Appellant - took an intermediate position,
  submitting that the effect was less dramatic than
  was suggested by Mr Bartley Jones but more
  significant than was suggested by Mr Stilitz.

24
Doran

• Counsel were united in the view that the decision
  had created a new battleground area
• Much argument about the scope of the modification
  of gateway
• A bleak prospect 46

25
Doran

• Helpful approach to what is a reasonable
  decision 56
• And no duty to conduct judicial investigation as
  to where the truth lies 56
• That point reinforced in both Taylor and Defence
  Estates

26
Doran

• Toulson LJ thought twofold effect of Doherty
• All factors can potentially be relevant
  (including personal) for example
• Money spent on pitch / property
• Time taken to get pitch / property
• History / family support and connections
• Health problems (educational problems) old age
• Absence of alternative accommodation
• Prospect of improvement in (e.g. behaviour)

27
Doran

• Second effect of Doherty
• Question whether the councils decision was one
  which no reasonable person would have made is to
  be decided by applying public law principles as
  they have been developed at common law, and not
  through the lens of the Convention
• Promising but read on!

28
Doran

• Lord Hope stated at para 55 that the requisite
  scrutiny would not involve the judge substituting
  his own judgment for that of the local authority.
  
• It cannot therefore have been envisaged that the
  court would make a judgment of the reasonableness
  of the councils decision otherwise than on the
  facts as they reasonably appeared, or should have
  appeared, to the council at the time of making
  its decision. 60
• As to when decisions might now be made see
  Taylor

29
Doran

• See postscript at 65-69 for helpful guidance on
  traveller cases involving phase 2 MHA 1983

30
Doran

• Court rejected argument that court can consider
  case retrospectively 57, 58

31
McGlynn v Welwyn HC

• 2009 EWCA Civ 285
• Non-secure tenancy (para 4 case)
• NTQ served as a result of ASB (magnet case)

32
McGlynn

• If we do not receive any further complaints of
  anti-social behaviour that can be linked to Mr
  McGlynn or his property we will consider granting
  him a further non-secure tenancy with an option
  to him being re-housed in a smaller property as
  requested. However, if the complaints continue,
  we will have no option but to continue with the
  legal action required to repossess 20 Kingscroft
  (Emphasis supplied)

33
McGlynn

• Correct approach is Kay, Doherty 32
• WS from authority did not give details of
  continuing complaints who made them, what they
  were, their impact etc.
• Court applied seriously arguable test appears
  to be on basis DJ made summary order 31

34
Defence Estates

• 2009 EWHC 1049 (Admin)
• No security of tenure para 11 sch1 HA 1988
• D was wife of resigned army officer provided
  with accommodation for 18 years after resignation

35
Defence Estates

• S.49A(1) positive discrimination provision
• But to suggest that section 49A enables someone
  who otherwise would fail to have any defence to a
  possession order nonetheless to remain is to take
  that much too far. 23

36
Defence Estates

• Conclusions in paras 57, 58
• No domestic law right to remain
• Need of army for accommodation outweighed
  individual Art 8 rights
• Unclear whether being treated as a summary
  hearing or not

37
Taylor

• 2009 EWCA Civ 613
• Trespassers case former right to occupy
  pursuant to AST granted by HAssoc who took from
  LHA (Luton) who took from another LHA (Bedford
  C) similar to Kay
• The main issue - whether arguable that the
  circumstances were such as to impose on the
  council an obligation to consider the personal
  circumstances of the appellants?
• Second issue - whether, in judging the lawfulness
  of the councils decision, the test is the strict
  Wednesbury rationality test or something wider?

38
Taylor

• Waller LJ emphasised that private landowner would
  face no difficulty
• Only additional point is A8 defence because C was
  a public body with decisions susceptible to JR
  18
• Concept of further decisions discussed 39-42

39
Taylor

• Kay type situations may make it unreasonable
  not to allow a period of time to bring the
  possession order sought into effect but that is
  something which the court oversees and which the
  law allows for 44
• Even if one made the assumption that the public
  authority was aware of the personal circumstances
  of the occupiers, their obligation to take
  account of them could never make it unreasonable
  to take proceedings for possession. Provided they
  could establish their absolute right to
  possession, personal circumstances could only be
  relevant to the extent to which a court was
  prepared to postpone execution, which a public
  authority would be entitled to leave to the court
  45.

40
Pinnock demoted tenant

• 2009 EWCA Civ 852 2009 32 EG 68 (CS)
• Tenant of 30 years standing, 5 children aged 26
  to 19
• Demoted due to ASB by household - 8 June 2007,
  two asbos, blackmail, dwd, poa offences
• 6 June 2008 MCC served possession notice based
  on events of 22 Sept 07 and 18 Jan 08

41
Pinnock

• 29 When, as here, the conduct of the tenant or
  those residing with or visiting him has been so
  serious as to justify a demotion order, very
  little is required to justify the landlords
  decision to obtain possession.
• It would be wholly wrong, and inconsistent with
  the statutory scheme, to scrutinise the
  landlords decision at the second stage with the
  rigour required of the county court at the first
  stage

42
Pinnock

• Proportionality at the second stage is not a high
  test
• decision must not be one that no reasonable
  person would consider justifiable
• good reason
• Now the best part -gt

43
Pinnock

• Further landlords decision at the second stage
  is not subject to the requirement of
  proportionality 32
• Simply extended rationality 47 on JR
  challenge
• And note CC has no JR jurisdiction in demotion
  cases 49-52