Landlord and tenant: assured shorthold tenancy

Claimant housing association seeking possession order - judge granting order - defendant tenant appealing - whether order contravening human rights - whether appropriate to make declaration of incompatibility - respect for defendant's home and right to family life - right to fair trial - European Convention on Human Rights articles 6 and 8 - section 21(4) of Housing Act 1988 - appeal dismissedPoplar Housing and Regeneration Community Association Ltd v Donoghue: Court of Appeal: Lord Chief Justice Woolf, Lords Justices May, Jonathan Parker:27 April 2001Poplar Housing and Regeneration Community Association Ltd (the claimant) was specifically created by the Tower Hamlets London Borough Council in order to transfer to it, a substantial proportion of the council's housing stock.

The claimant operated as a registered social landlord.

The defendant had been granted a periodic tenancy by the council, who later decided that the defendant was intentionally homeless, and her property was subsequently transferred to the claimant.In June 2000 the claimant served a notice under section 21(4) of the Housing Act 1988, and commenced possession proceedings.

Section 21(4) stated in mandatory terms that if the court was satisfied with certain conditions, it 'shall make an order for possession of a dwelling house let on an assured shorthold tenancy, which is a periodic tenancy'.

The defendant's contention was that to make an order for possession would contravene: (i) her rights to respect for her private and family life and respect for her home under article 8; and (ii) her right to a fair trial under article 6 of the European Convention on Human Rights, as set out in schedule 1 of the Human Rights Act 1998 (HRA).

Furthermore, she claimed that this would involve interpreting section 21(4) in a manner that was incompatible with the HRA.

The judge held that to read section 21(4) in such a way would, in effect, enable people who were intentionally homeless to jump the housing queue, which would, accordingly, impede the human rights of others.

He made an order for possession against which the defendant appealed.The defendant contended that the judge should have adjourned the hearing so as to enable her to place evidence before the court, relating directly to the issues of: l Whether the claimant was actually a public body, or merely performing a public function; l Whether making an order for possession contravened article 8 and, if it did, whether a declaration of incompatibility was the appropriate remedy, and;l Whether the judge had adopted an appropriate procedure to determine the article 8 issue, or whether this had been dealt with in too brief a manner.

As the defendant sought a declaration of incompatibility, the secretary of state then intervened in the appeal proceedings.Held: The appeal was dismissed.

1.

The judge was entitled to dispose of the case as he did.

Notwithstanding the language of section 21(4), he was required to deal with the article 8 issue once it was raised before him.

The judge accepted that the claimant was at least performing a public function in terminating the tenancy and seeking possession, and that article 8(1) therefore applied.

He focused on article 8(2) and concluded that section 21(4) did not offend article 8 on the basis that the purpose served by section 21(4) also fell within article 8(2).

It was not necessary for the judge, at that level, to hold a state trial into successive governments' housing policies in order to balance the public and private issues to which article 8 gave rise.2.

The definition of 'public authority' and 'public function', for the purposes of section 6 of the HRA, was to be given a generous interpretation.

The fact that a body performed an activity which otherwise a public authority would have a duty to perform did not necessarily render such a performance a 'public function'.

The fact that through the act of renting by a private body, a public authority might be fulfiling its public duty, did not automatically change a private act into a public act.

It was a question of fact and degree.

The instant case was borderline, but, in providing accommodation for the defendant and then seeking possession, the role of the claimant was so closely assimilated to that of the council that it was to be considered as performing public, and not private, functions.3.

Despite its mandatory terms, section 21(4) of the Act did not conflict with the defendant's right to family life.

Section 21(4) was necessary in a democratic society, in that there had to be some procedure for recovering possession of property at the end of a tenancy.

The question was whether the restricted power of the court was legitimate and proportionate.

That was an area of policy where the court should defer to the decision of parliament.

There was no contravention of articles 6 and 8.4.

In obiter remarks, the court dealt with the incompatibility issue.

It held that: (i) where section 3 of the HRA (which dealt with interpretation of legislation) applied, the courts were obliged to adjust their traditional role in relation to interpretation, so as to give effect to the direction contained in section 3 (thus, the court should always first ascertain whether, in the absence of section 3, there would be any breach of the convention); (ii) If the court had to rely on section 3, it should limit the extent of the modified meaning to that which was necessary in order to achieve compatibility; (iii) Section 3 did not entitle the court to legislate, its task was still one of interpretation, but interpretation in accordance with the direction in section 3; (iv) The views of the parties and the crown as to whether a 'constructive' interpretation should be adopted could not modify the task of the court; (v) if section 3 applied, the court was required to adopt the section 3 approach to interpretation; and (vi) Despite the strong language of section 3, where it was not possible to achieve a result that was compatible with the convention, the court was not required to grant a declaration of incompatibility and, presumably, in exercising its discretion as to whether to grant a declaration or not, it would be influenced by the usual considerations which applied to the grant of declarations.Jan Luba QC and Fiona Scolding (instructed by Breeze Benton) for the appellant; Ashley Underwood and Adrian Davis (instructed by the solicitor to Tower Hamlets London Borough Council) for the respondents; 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.