The problem of the undeserving claimant: Sims v Dacorum

When two people rent a house together on a contract that gets renewed every so often (as opposed to a contract that says they're there for a long period of time), they have what's called a joint periodic tenancy. In a 1992 decision ("Monk"), the House of Lords confirmed that if one of the two people wants to leave the house, they can serve a 'notice to quit' on the landlord at whenever the period ends (normally every year, though in the case we're going to consider, every week). 

In a joint tenancy, the two people are seen as one unit. So an action by one of them applies to both of them. This means that even if the other person wants to stay in the house, and even if the other person can continue paying rent, they have to leave if the landlord orders them to leave. In the case of social housing, it might be very rational for the landlord, the local council to tell the remaining person to leave, as they have a duty to house people in appropriate housing and not leave one person living somewhere that can house two people on the waiting list.

The problem is, however, that it's possible for the remaining tenant to be booted out of somewhere they think is their home without having any say themselves. This happened in the Monk case: Mr Monk's girlfriend moved out and served a notice to quit. Mr Monk had no idea she had done this until Hammersmith Council came knocking and told him to leave his house.

Monk was decided before the Human Rights Act came into force. So, in a case that has been working its way up the court system and was decided by the Supreme Court last week, Sims v Dacorum, someone who was being thrown out of his house under the Monk doctrine because his wife left him, a Mr Sims, has done what people do these days and claimed that Dacorum Council was breaching his human rights. He argued that they were breaching his right to respect for his home under Article 8 of the European Convention on Human Rights and his right to peaceful enjoyment of his possessions under Article 1 of Protocol 1 of the Convention ("A1P1").

The question before the Supreme Court was whether they should use the Human Rights Act to effectively overturn Monk. And you can see how good hearted liberal people like me might be in favour of that: under the doctrine, people can be thrown out of their homes just because their partner walked out on them, and they have no say over it.

The problem is that Mr Sims was not an innocent party. The court found that he had committed acts of domestic violence and his wife, Mrs Sims left him because of that. She only served a notice to quit because she needed to in order to enter a women's refuge. 

Furthermore, from a legal perspective on the facts, Mr Sims clearly had no case. His contract with the council explicitly said that he could be evicted if the situation that came to pass occurred. He therefore had no "possession" that the council were disturbing his right to peaceful enjoyment of. Although they were evicting him from a home he had lived in for several years, another clause of the contract said that they had a duty to consider keeping him there or finding him alternative accommodation, they had given him the opportunity to raise his case, and the court found it was proportionate to evict him (given that council housing resources are limited etc.) and therefore they didn't breach Article 8.

The judgment of Lord Neuberger on behalf of the whole court is beautifully brief and brutal. Given that the case was fairly open and shut, you can tell he sounds exasperated that he had to waste his time on Mr Sims. And he is probably right.

For people like administrative law professors (and me) who wet their pants at every single human rights case, however, the Supreme Court judgment must have been deeply disappointing, in that it did not truly engage with the question of whether Monk conflicts with the European Convention, that is, whether human rights law can effectively overturn the orthodox way of thinking about co-ownership of property.

In the English legal imagination we conceptualise two people renting a flat together as one person, rather than two people renting half the house each. There are very sound reasons for this, namely that both people can occupy all of the house at the same time: we don't need to say one person owns one floor and the other person the other. But that's not really how those people themselves view the situation. They both live in the house, but they don't see themselves as forming one unit living in the house.

The Supreme Court's judgment restates the logical conclusion of the 'joint tenancy' idea, and as an orthodox kind of guy I wholly agree with it on that basis. But the Supreme Court was so caught up in finding the right legal solution that they did not think that the law should be rethought. The facts of the case meant they didn't need to, but that is why it is the facts of the case that are the most regrettable thing about it.

The Court reiterated an opinion they had expressed in a 2010 case, Pinnock: if a council is thinking of evicting someone, they have to make sure they are acting proportionately with the person's right to a home (although in Pinnock itself the Court accepted the council's case for eviction). But the problem in the Monk situation is that you can argue that a council shouldn't necessarily be thinking about evicting people just because their partner walked out on them. Of course they then have to apply proportionality. But it is certainly arguable that the question shouldn't arise in the first place. 

Mr Sims actually dropped this line of argument in the Supreme Court (in the Court of Appeal he said Monk should be overruled): he said the application of the rule was wrong, not the rule itself. But the application of the rule was clearly right in his case. It is the rule that is more dubious.

This whole situation very clearly highlights a fairly problematic flaw in the common law system: rules only change when the right case comes along to change them. We could hardly expect the Court of Appeal and the Supreme Court to look kindly on the case of a man who forced his wife and two of his kids out of his house and lost his tenancy only because his wife couldn't otherwise enter a women's refuge. 

But having decided this case, how much longer will it take for a deserving or an arguable case to come along for the Supreme Court to reconsider the rule in Monk? How many more evictions have to take place? Certainly, the evisceration of legal aid will make it much harder even to test the proportionality of these council decisions in court, let alone get rid of the councils' prima facie powers.

I wholly understand the principle behind the joint tenancy idea, and I wholly agree that the logical legal consequence of it is the rule in Monk. Lawyers have to work according to the logic of the law and not its practical consequences, even if in some situations this means pain for some people.

However, the whole point of the human rights 'industry', even if I might feel uncomfortable about it, is to be able to change laws that have bad effects. But it only works if you have deserving claimants who can bring cases. It is sad that the number of people able to bring cases is declining. It is sad that Mr Sims had to fight the bad fight against the decision in Monk. It is of course sad that Parliament is not figuring out a way to sort out situations like this, at least in a less brutal way.

I make no particular proposals for reform since I am fairly unsure how it might be sorted out. It might even be the case that most people this affects are not affected too seriously, and therefore there should be no reform.

But Sims v Dacorum shows us that to achieve reform through the common law courts, the broad mass of 'victims' have to get lucky with who they get to represent them. It is very unclear that this itself is fair. But it is extremely unfair that in this situation, the 'victims' of the rule in Monk had a man like Mr Sims as their champion.