Article 8 and possession proceedings

Monday 28 November 2016

Holley v Hillingdon London Borough Council [2016] EWCA Civ 1052, 1 November 2016

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Holley v Hillingdon London Borough Council [2016] EWCA Civ 1052, 1 November 2016

The appellant, Mr Holley, had lived at a property in the area of the respondent, Hillingdon LBC since his birth in 1979. The property in question was a three bedroom property with a garage, suitable for a family of six. Mr Holley had lived at the property with his grandmother who had been the secure tenant of the property until her death in 2009. At that point the tenancy vested in Mr Holley’s grandfather. Following the death of Mr Holley’s grandfather in 2012 – since there could be no further statutory succession under ss87-89 Housing Act 1985 – Hillingdon served a notice to quit bringing the subsisting contractual tenancy to an end. Thereafter Mr Holley remained in the property. In legal terms his status was that of a trespasser.

Also living at the property was Mr Holley’s brother. He was said to have moved into the property to support Mr Holley, who had developed various mental health issues (including anxiety, panic attacks and depression) following the death of his grandmother.

Hillingdon commenced possession proceedings in order to recover the property. In making the decision to do so, Hillingdon had considered whether Mr Holley might qualify for the grant of a secure tenancy pursuant to its allocation scheme. The relevant provisions, relating to so-called ‘second-successors’, provided that where there had already been a succession, a person remaining in occupation would qualify for a tenancy where he or she was vulnerable, had a clear housing need, was over 65 (or 50 if the person in question had a learning difficulty) and had lived at the property for the preceding 10 years, or as long as it had been available.

The matter came before the county court at Willesden. Mr Holley sought to argue that: (i) eviction constituted a disproportionate interference with his rights under Article 8 ECHR; (ii) that the age criterion in Hillingdon’s allocation scheme, restricting second successions to the over-65s, resulted in unlawful age discrimination; and (iii) that the notice to quit was invalid. HHJ Karp dismissed the defence and proceeded to make a possession order. In relation to the Article 8 argument she said that she was constrained by the decision in Thurrock Borough Council v West [2012] EWCA Civ 1435, and that the length of Mr Holley’s residence was irrelevant.

Mr Holley appealed to the Court of Appeal, renewing his Article 8 arguments and, in addition, arguing that Hillingdon had unlawfully fettered its discretion in relation to whether or not to grant him a tenancy, as its allocation scheme contained no residual discretion.

The Court of Appeal dismissed Mr Holley’s appeal. In relation to the first ground, the correct interpretation of the guidance given by Etherton LJ at [33] of Thurrock Borough Council v West [2012] EWCA Civ 1435 was that length of residence alone would not be sufficient to substantiate an Article 8 defence. However length of residence is relevant to the overall proportionality assessment, though it is unlikely to be a weighty factor. Although it was not possible to ascertain from the judge’s reasoning in this case whether she had treated the length of Mr Holley’s residence the correct way, it could not be said that her overall conclusion was wrong. Mr Holley’s circumstances were not exceptional. Multi-generation, long-term occupation of homes is not unusual. And there was nothing to suggest that Mr Holley’s mental conditions would be exacerbated if he had to move, or that he would find it harder to access treatment.

On the second ground, the Court held that the scheme, viewed as a whole, did appear to contain a residual discretion to deal with exceptional cases. But even if this were not the case, or if Hillingdon had failed to properly consider the exercise of this discretion, the ground was academic. Given the shortage of housing in the borough, the number of applicants on Hillingdon’s waiting list, the size of the property in question and Mr Holley’s personal circumstances, it was inevitable that Hillingdon would have reached the same decision in any event.

Click here for the judgment.

Judgment available on Westlaw (£). Not yet on BAILII.

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