Salford City Council v Mullen  EWCA Civ 336 (30 March 2010)
In this case, the England and Wales Court of Appeal considered the impact of House of Lords decisions on the rights of tenants occupying premises under ‘introductory’ or ‘homeless’ accommodation legislation. In considering the ability of tenants to raise arguments under art 8 of the European Convention on Human Rights, the Court of Appeal clarified the scope of the ‘gateway b’ defence. This decision provides an important component of the proposed Supreme Court appeal Pinnock v Manchester City Corporation  1 WLR 713 in which 9 Supreme Court Justices will consider these issues in relation to ‘demoted tenant’ legislation.
In Salford City Council v Mullen, the England and Wales Court of Appeal considered the position of five public housing tenants who had been provided with accommodation either as ‘introductory tenants’ or ‘homeless persons.’
Justice Waller of the Court of Appeal noted this decision was required to assist lawyers and judges to interpret decisions of the House of Lords in relation to similar issues (namely, Kay v Lambeth London Borough Council  UKHL 10  2 AC 465 and Doherty v Birmingham City Council  UKHL 57  1 AC 367). Further, it was noted that the newly constituted Supreme Court (formerly the House of Lords) was due to revisit Kay and Doherty in the context of ‘demoted tenants’ when it hears the matter of Pinnock v Manchester City Corporation in July 2010.
Rather than stay the appeals under consideration until Pinnock is resolved, the Court of Appeal was persuaded to hear the matters urgently on the basis that the Supreme Court in Pinnock may benefit from the ability to also address ‘homeless persons’ and ‘introductory tenants’ as considered in Salford.
The Salford decision relates to art 8 of the European Convention on Human Rights which grants every person the right to respect for his or her ‘home’. In Kay and Doherty, the majority of the House of Lords held that the County Court was unable to rule on the proportionality of possession orders under art 8(2) of the Convention. Article 8(2) states that:
There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
In the leading majority speech of Lord Hope in Kay, it was established that the County Court might only decline to make a possession order (in circumstances where the law was otherwise satisfied) in two situations:
- where it was seriously arguable that the law which enabled the County Court to make the possession order was itself incompatible with art 8 (referred to as ‘gateway (a)’); or
- where the defendant wishes to challenge the decision of a public authority to recover possession as an improper exercise of its powers on the ground that it was a decision that no reasonable person would consider justifiable (referred to as ‘gateway (b)’).
Without considering each of the five individual Salford appeals in detail, it is worth noting the facts of the following two appeals:
- In Powell v Hounslow (the Powell appeal) – this appeal related to ‘homeless accommodation’ provisions. The facts were that Ms Powell had failed to provide information to the department responsible for her housing benefit and was in arrears due to the non-payment of this benefit. In the County Court proceedings Ms Powell sought to rely on the ‘gateway b’ defence.
- In Hall v Leeds (the Hall appeal) – this appeal related to the ‘introductory tenancy’ provisions. The facts were that Mr Hall was alleged to have breached his introductory tenancy by making excessive noise and engaging in anti-social behaviour. Mr Hall did not dispute the alleged breaches of his tenancy agreement but sought to argue they were due to his mental illness. Further, Mr Hall sought to raise a ‘gateway b’ defence and claimed the County Court needed to consider whether it was reasonable and proportionate to make a possession order.
The Court of Appeal noted the Housing Act 1985 (the 1985 Act) established that, unless an exception applied, tenancies granted by local authorities were generally ‘secure’ and that Parliament intended to provide significant procedural and substantive protection against eviction. By contrast provisions relating to ‘homeless accommodation’ and ‘introductory tenancies’ provided much less security.
Homeless accommodation and introductory tenant accommodation
Homeless accommodation: The Housing Act 1996 (the 1996 Act) established the duties of local authorities in relation to homeless persons. The Court of Appeal noted that the 1996 Act established non-secure tenancies for people regarded as homeless and that Parliament had intended to ‘exclude such tenancies from the procedural and substantive protections that apply in the case of secure tenancies.’ The rationale for such legislation was said to enable local authorities to swiftly recover possession of homeless accommodation and ‘make efficient and cost-effective use of their limited resources in the housing field.’
Introductory tenant accommodation: The 1996 Act also established an ‘introductory tenant’ regime enabling local authorities to grant non-secure tenancies to new tenants as a system of ‘probation’ in order to assist local authorities to tackle anti social behaviour. This legislation established that the County Court had no ability to assess the merit or validity of reasons underlying an application for possession. The Court of Appeal noted that the decision of R (McLellan) v Bracknell Forest Borough Council  EWCA Civ 1510 had established that the introductory tenancy regime was compatible with art 8 of the Convention.
‘Gateway b’ defence
In relation to ‘homeless accommodation’ the Court of Appeal held that the decision of Barber v London Borough of Croydon  EWCA Civ 51 established that a ‘gateway b’ defence may be raised by tenants in County Court proceedings.
In considering the ‘introductory tenant accommodation’ the Court of Appeal followed its decision in Pinnock v Manchester City Corporation  1 WLR 713, where it was held the County Court only had power to adjourn proceedings to enable an application to be made for judicial review, if such a point were seriously arguable.
In considering the scope of the ‘gateway b’ defence the Court of Appeal noted this did not involve a full proportionality review provided for in art 8(2) of the Convention. Further, the Court referred to the majority speech of Lord Hope in Doherty where he concluded
In my opinion the test of reasonableness should be… whether the decision to recover possession was one which no reasonable person would consider justifiable.
The Court of Appeal referred to comments of Lord Bingham in Kay where he stated ‘[c]ourts should proceed on the assumption that domestic law strikes a fair balance and is compatible with art 8.’ In these circumstances it stated that only ‘highly exceptional circumstances’ would justify a ‘gateway b’ defence in relation to homeless accommodation.
Applied to the individual appeals it was held:
- In relation to the Powell appeal – if a ‘gateway b’ defence were arguable the appropriate venue for this was the County Court. The Court of Appeal stated that in its view a ‘gateway b’ argument should have been summarily dismissed and that the appeal should also be dismissed.
- In relation to the Hall appeal – the Court of Appeal held that the County Court was not entitled to consider a ‘gateway b’ defence. If it were considered that such a defence was arguable the possession proceedings should have been adjourned to enable an application for judicial review by the Administrative Court.
Of the five tenants before the Court of Appeal in Salford, ultimately only two appellants (Powell and Hall) were granted leave to appeal to the Supreme Court and may have their matters heard together with the Pinnock.
Relevance to the Victorian Charter
Fortunately, Victoria does not have separate residential tenancies legislation for probationary tenants, introductory tenants or homeless tenants. The Salford decision is nonetheless of interest in light of its consideration of jurisdictional issues relating to human rights arguments and the recent Victorian Civil and Administrative Tribunal judgment of Bell J in Director of Housing v Sudi  VCAT 328.
In Sudi, the Director of Housing applied to evict Mr Sudi and his three year old son from their public housing premises. The Director refused to provide any justification for this action under the Victorian Charter and argued that VCAT had no jurisdiction to consider this issue.
In considering human rights implications under the Charter, Bell J rejected the argument that VCAT was unable to consider whether the Director breached the Charter. On this issue, His Honour stated, ‘the Tribunal has both the jurisdiction and the obligation to determine whether it has jurisdiction in a proceeding, including the validity of provisions which impact on that jurisdiction.’
The Salford and Sudi decisions represent different approaches to the issue of jurisdiction in relation to human rights. In Sudi, Bell J referred to the decision of the Supreme Court of Canada in Zurich Insurance Co v Ontario (Human Rights Commission)  2 SCR 321, where human rights legislation was described as the ‘final refuge of the disadvantaged and the disenfranchised’ and the ‘last protection of the most vulnerable members of society’. As a matter of access to justice, the approach of Bell J in Sudi is to be preferred to interpretations which push human rights towards the Supreme Court.
The decision is available at www.bailii.org/ew/cases/EWCA/Civ/2010/336.html.
Chris Povey is a Senior Lawyer with the PILCH Homeless Persons’ Legal Clinic