Vertex Law

Landmark human rights case on local authority possession claims

by Lee May

The European Court of Human Rights has ruled that Birmingham City Council breached Article 8 when it took proceedings to evict a husband who remained in the family home after his wife terminated the tenancy by giving notice to quit.

The Court’s ruling in the case of McCann v The United Kingdom 19009/04 [2008] ECHR 385 is of crucial importance for Local Authorities who are considering taking possession proceedings against tenants.  The decision highlights the need to ensure that tenants threatened with eviction have the opportunity to have the proportionality of losing their home determined in the Courts, particularly where the Council is not proposing to rely upon one of the statutory grounds in section 84 of the Housing Act 1985.

The facts of the case were that in July 1998 Mr and Mrs McCann became joint tenants of a house owned by Birmingham City Council.  Subsequently the marriage broke down and Mr McCann left the house pursuant to a non-molestation order and an ouster order.

Mrs McCann and their two children remained in the property for a short while but left the house after Mr McCann forced entry and allegedly assaulted Mrs McCann.  Prosecution proceedings were commenced against Mr McCann but he was acquitted when the prosecution offered no evidence.

Mrs McCann applied for re-housing on grounds of domestic violence and was allocated another Council house.  She also retuned the key to the original house to the Council saying that she was giving up the tenancy.  However, Mr McCann returned to the house and began living there again.

The Council persuaded Mrs McCann to sign a notice to quit (NTQ) formally giving up the tenancy.  They did not explain to Mrs McCann that this would have the effect of terminating the tenancy for both her and her husband and when she realised the implications she wrote to the Council purporting to withdraw the NTQ.

The Council took the view that the notice remained effective and brought possession proceedings against Mr McCann on the basis that he was an unlawful occupier.  They argued that as he had no tenancy they did not need to take action in accordance with section 84 of the Housing Act 1985.

Mr McCann appealed to the County Court who dismissed the Council’s claim for possession.  Court of Appeal overturned that decision holding that in the circumstances the Council had an “unqualified right to possession”.

The matter finally came before the European Court of Human Rights in April 2008, who decided that Birmingham City Council had breached Article 8 of the Convention.

The statutory framework set out in s.84 of the Housing Act was not itself in issue.  The problem was that the Council had used the NTQ procedure to secure the eviction and had thus bypassed the safeguards built into the Act.  The Court stated that:

“Under the summary procedure available to a landlord whereby one joint tenant serves notice to quit, the applicant was dispossessed of his home without any possibility to have the proportionality of the measure determined by an independent tribunal.  It follows that, because of the lack of adequate procedural safeguards, there has been a violation of Article 8 of the Convention in the instant case.”

What this case highlights is that Local Authorities will need to proceed with extreme caution when one joint tenant serves a Notice to Quit on the Council which purports to end the right of occupation of the other.

Vertex Law LLP can assist Local Authorities on all aspects of Housing Law.  For further advice or assistance call Lee May on 01732 224 039.