Possession Claims and Public Law Duties - Bryn Colin Davies v Hertfordshire Council
A recent case has established that public bodies must consider their public law obligations before taking steps to evict an occupier, even if the occupier does not have any private law right to remain in the property (such as a trespasser).
Background
Mr Davies was a caretaker who lived in a bungalow on a school site under a service occupancy. He was dismissed and his licence to occupy ended automatically. He refused to leave the property and he, his wife and children became trespassers.
The Council issued a claim to remove him from the bungalow.
Mr Davies argued the claim was unlawful 'in a public law sense' as the Council had not considered:
- his rights under article 8 of the European Convention on Human Rights (ECHR) (right to respect for his private and family life and his home)
- his disability under s149 of the Equality Act 2010 (a public authority must have due regard to protected characteristics)
- his children's welfare under s11 of the Children Act 2004 (prescribed bodies must have due regard to the welfare of children)
The Old Law
Before this case, any occupier could raise breach of article 8 of the ECHR as a defence to a possession claim.
However, before this case, an occupier could not raise a breach of any other public law duty as a defence to a possession claim unless the occupier had a right to be in the property (such as a tenant holding over and protected by statute).
The Decision
Mr Davies' right to occupy had ended automatically upon his dismissal. He was therefore a trespasser with no private law right to remain. Under the old law, he would have been able to raise a defence based upon article 8 but not based upon breaches of the Equality Act or Children Act.
However, the court took a different approach in this case.
The court found no reason to distinguish between a defence based upon a breach of article 8 ECHR and a defence based upon any other public law duty (such as a public law duty under the Equality Act). Mr Davies was therefore allowed to raise a breach of the Equality Act and the Children Act in defence to the possession claim, even though that breach did not infringe any private right to remain in the bungalow.
Effect of the Decision
This decision opens the door to occupiers to defend possession claims brought by public bodies on the basis of breaches of public law obligations, even if the occupier cannot point to a private right affected (for example, where an occupier is a trespasser).
Public bodies will need to make sure they can demonstrate, with reference to a suitable paper trail, that they have considered all relevant public law duties before taking steps to seek possession of a property, regardless of the occupier's right to remain.