HOUSING — Demoted tenancy — Proceedings for possession — Housing authority seeking order for possession — Claimant contending review by housing officer of original decision to terminate tenancy not independent or impartial — Whether procedure contravening tenant’s rights to fair hearing — Housing Act 1996, ss 143E–F (as inserted by Anti-Social Behaviour Act 2003, s 14(5), Sch 1, para 1) — Human Rights Act 1998, Sch 1, Pt I, art 6 — Demoted Tenancies (Review of Decisions) (England) Regulations 2004 (SI 1679/2004)

R (Gilboy) v Liverpool City Council [2008] EWCA Civ 751; [2008] WLR (D) 224

CA: Waller, Buxton and Smith LJJ: 2 July 2008

The internal review procedure for reconsideration by a local housing authority of a decision to terminate a demoted tenancy complied with article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

The Court of Appeal so held when dismissing the appeal of the claimant, Elizabeth Gilboy, against a decision of Stanley Burnton J on 15 October 2007 [2007] EWHC 2335 (Admin) refusing her claim for judicial review of the decision of a reviewing officer of Liverpool City Council, made in accordance with the 2004 Regulations, to seek to terminate her demoted tenancy and to obtain possession of her home.

WALLER LJ said that the internal review procedure for reconsideration by local housing authorities of a decision to terminate a demoted tenancy had been established by sections 143E–143F of the Housing Act 1996, as inserted, and the Demoted Tenancies (Review of Decisions) (England) Regulations 2004. The point raised was one of significance in the context of the legislation. In R (McLellan) v Bracknell Forest Borough Council [2002] QB 1129 relating to the scheme for introductory tenancies, the Court of Appeal had held that article 6 was engaged, but applying the principle that one must look at the decision-making process as a whole, including any review by the court through judicial review, dismissed the article 6 challenge. The introductory tenant scheme was not materially different from the demoted tenant scheme. There was no distinguishing feature of the demoted tenancy scheme which would not allow the reasoning in McLellan’s case to apply.

BUXTON and SMITH LJJ agreed.

Appearances: Jan Luba QC and Adam Fullwood (Jackson & Canter, Liverpool) for the claimant; Edward Bartley Jones QC and Paul Burns (Head of Legal Services, Liverpool City Council, Liverpool) for the council; Daniel Stilitz (Treasury Solicitor) for the Secretary of State for Communities and Local Government, an interested party.

Reported by: Alison Sylvester, barrister