Housing law

Introductory tenanciesThe Court of Appeal has held that the scheme for introductory tenancies in the Housing Act 1996 is compatible with article 6 (fair trial), article 8 (respect for home and family life) and article 14 (discrimination) of the European Convention on Human Rights (R v Secretary of State for the DETR, ex parte McLellan and Reigate & Banstead BC v Benfield [2001] EWCA 1510).

Local authorities and housing action trusts may adopt introductory tenancy schemes, which were created as part of a response to anti-social behaviour.

In essence, tenants have a probationary period of one year (known as a 'trial period') before they acquire full security of tenure under the Housing Act 1985.

During the trial period, the landlord may serve a notice of its intention to seek possession.

The tenant has a right to a review, which is carried out by the landlord.

If the tenant does not exercise that right, or the review is determined against him, the county court must grant a possession order.

Prior to the Human Rights Act 1998, it was held that all the county court could do was adjourn the hearing pending an application for judicial review of the authority's review decision (Manchester CC v Cochrane [1999] 1 WLR 809, CA).

McLellan is in line with earlier housing human rights cases.

The court rejected an argument that article 8 was not engaged at all on the ground that termination of a tenancy in accordance with the statutory scheme and the contractual terms of the tenancy could not constitute interference with 'respect for' the home.

The court followed earlier decisions that any eviction engages article 8, although it may be justified under article 8(2) (see Lambeth LBC v Howard [2001] EWCA Civ 468 and Poplar HARCA v Donoghue [2001] EWCA Civ 595).Adopting its approach in Donoghue, the court held that housing policy was a matter for Parliament.

The interference was justified under article 8(2) - it was necessary, corresponded to a pressing social need and was proportionate to the aim pursued.

After Donoghue, doubts lingered as to whether a tenant could argue that the eviction was not proportionate in his particular circumstances, notwithstanding the compatibility of the legislation.The court held that while the tenant can raise his personal circumstances in the county court, this is limited to presenting a case for an adjournment to apply for judicial review.

However, it was noted, that to ensure compliance with article 6 the court accepted that the level of scrutiny in judicial review proceedings may have to be intensified.

It was held that the authority's decision on review is determinative of the tenant's 'civil rights' so that article 6 applied.

Although the landlord was not an 'independent or impartial' body for the purposes of article 6, the decision-making process had to be viewed as a whole.

The review procedure itself provided a number of safeguards and the decision was susceptible to judicial review.

A county court which considers that eviction infringes a tenant's rights can extend the time for possession to six weeks under section 89 of the Housing Act 1980, which is not in itself incompatible with article 8.The argument based on article 14 was rejected out of hand.

Once the scheme is adopted, it applies to all would-be tenants so that there is no question of persons in factually similar circumstances being treated differently.

By Andrew Dymond, barrister, Arden Chambers, London