Unlawful dispossession

McCann v United Kingdom (Application number 19009/04) ECHR TLR 23 May

The European Court of Human Rights unanimously held that under the summary procedure available to a landlord in England and Wales where the effect of one joint tenant serving notice to quit is to dispossess the other of his home without any possibility to have the proportionality of that measure determined by an independent tribunal was a violation of art 8 of the European Convention on Human Rights (ECHR). The applicant, Gerrard McCann and his former wife were secure tenants under the Housing Act 1985 of a three-bedroom house belonging to Birmingham City Council. The marriage broke down and Mrs McCann and the three children were re-housed on the ground of domestic violence. She informed the local authority that she was giving up the tenancy of the former matrimonial home and returned the keys of the house. After a short absence, Mr McCann moved back into the house and did a considerable amount of work to renovate it. The children stayed with him three nights a week. A housing officer, realising that Mr McCann intended to remain in the house visited Mrs McCann and asked her to close the tenancy by signing a notice to quit. This she did, with the effect under domestic law of bringing the tenancy to an end. Mrs McCann had not been advised and had not understood that the notice to quit would effectively remove her former husband’s right to live in the house, or exchange it for another local authority property. The county court judge dismissed the local authority’s claim for possession on these grounds, but on appeal, and on judicial review, it was found that the local authority had acted lawfully and that the notice to quit was effective, despite it having been signed without an understanding of its consequences. The European Court of Human Rights considered that the interference with Mr McCann’s rights in respect of his home had been interfered with in accordance with the law with the legitimate aim of protecting the local authority’s right to regain possession with property from an individual who had no contractual or other right to be there. It also aimed to ensure that the statutory scheme for housing provision was properly applied. However, any person at risk of losing his home, which was a most extreme form of interference with the right to respect for one’s home, should be able to have the proportionality of the measure determined by an independent tribunal, even if, under domestic law, the right of occupation had come to an end. The legislator in the UK has set up a complex system for the allocation of public housing, which included, under s84 of the Housing Act 1985, provisions to protect secure tenants with public authority landlords. Had the local authority sought to evict the applicant in accordance with that statutory scheme, it would have had to apply for a possession order and, in those proceedings, the applicant could have asked the court to examine his personal circumstances, including the need to provide accommodation for his children and whether his wife had really left the family home because of domestic violence. The local authority had chosen to bypass that statutory scheme, however, by asking Mrs McCann to sign a common law notice to quit, which had resulted in the termination of the applicants’right, with immediate effect, to remain in the house. The authority, in the course of that procedure, had not given any consideration to the applicants’ right to respect for his home. Nor had the ensuing possession proceedings or judicial review proceedings provided any opportunity for an independent tribunal to examine whether the applicants loss of his home had been proportionate to the legitimate aims pursued. The court awarded Mr McCann under art 41, €2000 in respect of non-pecuniary damage and €75,000 (less €850 in legal aid paid by the Council of Europe) for costs and expenses.