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The useful and well informed housing law blog, Nearly Legal, has reported two refusals of permission to appeal by the Supreme Court in important housing law cases over the past few days.

First, there is the case of R (Weaver) v London & Quadrant Housing Trust [2009] EWCA Civ 587 in which it was held that a registered social landlord could be a hybrid public authority for the purposes of section 6(3)(b) of the Human Rights Act 1998 and that the eviction of an assured tenant was not a private act and suspectible to judicial review.  The case was unsatisfactory because the tenant’s arguments had failed on the facts at first instance and this was not subject to an appeal.  In other words, the issue came before the court of appeal, as Elias LJ put it “in a somewhat abstract and academic form”.  The case was noted by Nearly Legal here.   The defendant registered social landlord sought permission to appeal to the the Supreme Court.  This was refused by Lord Hope, Lady Hale and Lord Brown on 5 November 2009, as noted by Arden Chambers and picked up by Nearly Legal.  The reason for the refusal was the conventional “the application did not raise an arguable point of law of general public importance which ought to be considered by the Supreme Court at this time (see the post here).

The second case in which permission was refused today, is Central Bedfordshire v Taylor [2009] EWCA Civ 613 – another case which raised the issue as to how judges dealing with possession proceedings should take into account the Article 8 rights of tenants.   The case is noted by Nearly Legal here.  There is a long running difference of view between the English Courts and the European Court of Human Rights as to the extent to which Article 8 rights need to be taken into account in every case.   The majority of the House of Lords in Kay v Lambeth LB [2006] UKHL 10 decided that the only Article 8 defence that is possible is a challenge to the law providing for possession.  The Court of Human Rights in McCann v United Kingdom, Judgment of 13 May 2008 appeared to take a different view but, in Doherty v Birmingham City Council [2008] UKHL 57 the House of Lords decided that the Court of Human Rights had misunderstood English law.  Subsequent Strasbourg cases relating to other countries have followed the McCann approach.  Some of the background is explained here.   The issue arose again in the Central Bedfordshire case.  However, Lords Walker, Mance and Collins refused permission, holding that:  “the application did not raise an arguable point of law of general public importance which ought to be considered by the Supreme Court at this time.” 

In the light of history of this issue it is not surprising that the Supreme Court does not want to revisit it so soon after the Doherty decision.  Nevertheless, the cases do highlight fundamental differences of approach between Strasbourg and the English courts which are not easy to reconcile.  It seems unlikely that we have heard the last of it.

Both decisions of the Court of Appeal in which permission has been refused are discussed by Robert Latham and Stephen Reeder in this article in the New Law Journal in October 2008.