Housing

Assured shorthold tenancy - order for possession - right to respect for family life and home not contravenedPoplar Housing and Regeneration Community Association Ltd v Donoghue: CA (Lord Woolf CJ, Lords Justice May and Jonathan Parker): 27 April 2001The claimant housing association was the landlord of premises in respect of which the defendant had been provided with an assured shorthold tenancy pending a decision by the local authority as to whether or not she was intentionally homeless.The local authority concluded that the defendant was intentionally homeless and the claimant sought an order for possession under section 21(4) of the Housing Act 1988.The defendant argued that section 21(4), under which the court had to grant the order if the statutory conditions were met, contravened her right to respect for family life and home under article 8 of the Convention for the Protection of Human Rights, as scheduled to the Human Rights Act 1998.

The district judge made the order and the defendant appealed.Jan Luba QC and Fiona Scolding (instructed by Breeze Benton & Co) for the defendant.

Ashley Underwood and Adrian Davis (instructed by the Solicitor, London Borough of Tower Hamlets) for the claimant.

Philip Sales and Sarah Moore (instructed by the Treasury Solicitor) for the Secretary of State for the Environment, Transport and the Regions, as an interested party.Held, dismissing the appeal, that the court should always give the formal notice which the 1998 Act and the Civil Procedure Rules 1998 required to be given to the Crown in order that it could intervene in proceedings where the court might make a declaration that primary legislation was incompatible with the convention; that a party which sought a declaration of incompatibility, or which acknowledged that a declaration of incompatibility might be made, should give as much informal notice to the crown as practical of the proceedings and the issues involved and, at the same time, should send a copy of such notice to the court and to the other parties; that, while activities of housing associations need not involve the performance of public functions, in providing accommodation for the defendant and then seeking possession, the claimant's role was so closely assimilated to that of the local authority that it was performing public functions to which the 1998 Act applied; that to evict the defendant from her home did impact on her family life; but that, in considering article 8(2), the court had to pay considerable attention to the fact that parliament intended when enacting sections 21(4) of the 1988 Act to give preference to the needs of those dependent on social housing as a whole over those who were intentionally homeless; that the court's limited role under section 21(4) was a legislative policy decision; that the correctness of that decision was more appropriate for parliament than the courts and the 1998 Act did not require the courts to disregard the decisions of parliament in relation to situations of that sort when deciding whether there had been a breach of the convention; and that, accordingly, notwithstanding its mandatory terms, section 21(4) did not conflict with the defendant's rights under article 8 of the convention.

(WLR)