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Human rights



See also Possession and human rights page.


Discrimination - article 14

Inadequate installations

R (on the application of Erskine) v London Borough of Lambeth [2003] EWHC 2479, Mitting J

Introduction

Article 14 states that the enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination. It does not therefore give rise to a separate right of its own independent of other rights. The exact relationship between article 14 and other convention rights has been a subject and some debate.

Facts

Secure tenancy of a 2-bedroom maisonette. The positioning of the sockets in the kitchen led the tenant to run an electric kettle, a toaster, a television, and when in use, a washing machine, from a gang socket hanging freely from a single plug inserted into a cooker point socket. The applicants expert evidence was that the positioning of the sockets was unsafe and made the flat unfit for human habitation. It was said that the facilities for cooking of food were not satisfactory within s604(1)(f) of the Housing Act 1985. Because the defendant was a local authority it could not serve, on itself, a notice under s189 of the 1985 Act, requiring remedial works to be carried out. It could have served such a notice if the landlord had been another body. The applicant argued that these matters gave rise to a breach of Article 8 (right to a home) and a breach under Article 14.

Held

The claim was dismissed. The condition of the kitchen did not breach the applicants Article 8 rights. There were adequate facilities for the preparation of food. The unsafe arrangements currently in place are the result of the steps taken by the claimant. The remaining issue in the case therefore was: Given that there is no direct infringement of her Article 8 rights by the local housing authority, does Article 14 assist her? Her counsel argued that s189 (the power to service a notice) falls within Article 8 and that the inability to enforce that section in her case because of the nature of her landlord was discriminatory. That argument was also rejected: The purpose of the relevant provisions of the 1985 Act is to protect and promote public health and to improve the conditions of low cost housing stock. It is not for the protection or promotion of the rights of individuals. The legislation does not therefore fall within the ambit of Article 8 and the differences in the enforcement regime cannot give rise to complaints of discrimination under Article 14. The Court of Appeals obiter comment in Ghaidan v Godin-Mendoza [2003] 2 WLR 478 that it would appear that even the most tenuous link with another provision in the Convention will suffice for article 14 to come into play was disapproved.

Comment

This case highlights the absurdity of so much litigation particularly where Human Rights arguments are run. The defect in the kitchen could have been remedied easily: Minor expenditure on trunking and fixing of a double socket on the surface of the wall above the worktop would eliminate, in the short and medium term, the risk to her and to her children of the accidental dislodging of electrical appliances from the worktop. Yet, this case ended up before a High Court judge costing many thousands of pounds. Because of the Human Rights issues, the Office of the Deputy Prime Minister was joined as an interested party and was represented by counsel. However, both he and counsel for the local authority ran the same argument.


No joint tenancy

Royal Borough of Kensington and Chelsea v O'Sullivan
[2003] EWCA 371

Husband terminated his secure tenancy (granted in 1970) leaving his wife (who was not a joint tenant) in occupation. He was given another tenancy of a smaller flat. The council was not aware at the time that she was in occupation. In possession proceedings brought by the council against the wife when they discovered her presence she argued that there had been a breach of article 14 (discrimination) because she had not been given a joint tenancy in 1970 and the claim for possession was a continuation of the discriminatory act; and article 8 because the property was her home. Held: The arguments were rejected. The council was entitled to protection.


Homeless persons

Sheffield City Council v Smart; Central Sunderland Housing Company Ltd v Wilson
[2002] EWCA Civ 04.

Possession proceedings brought in respect of a non-secure tenancy granted under s193 of the Housing Act 1996 (housing persons with priority need who are not intentionally homeless excluded from security by Housing Act 1985, sched 1, para 4) did not breach either Article 6 (fair trial) or Article 8 (home) of the European Convention on Human Rights.

Secure tenancies - succession

Michalak v Wandsworth LBC
[2002] EWCA Civ 271

Another failed attempt to invoke the Human Rights Act in a possession claim. The tenancy was a secure tenancy. The defendant was a distant relative of the tenant who had died and was not included in any of the categories of family member listed in s113 entitled to succeed to the tenancy. His exclusion from that category was not incompatible with Articles 8 and 14 of the Convention. The case sets out the principles to be applied when deciding whether or not the convention has any impact.


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