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Two Birmingham council tenants are facing eviction after three top judges ruled against them in a vital human right...
Two Birmingham council tenants are facing eviction after three top judges ruled against them in a vital human rights test case.

Harold Bradney and Gerrard McCann were both left living alone in their council homes after the breakdown of their relationships.

They have no right under domestic law to stay in the properties but both claimed that to evict them would violate their right to respect for their homes, enshrined in Article 8 of the Human Rights Convention.

However, in a ruling which will have major consequences for councils and their tenants nation-wide, Appeal Court judges today ruled Article 8 is 'not available' as a defence to local authority possession claims.

Mr Bradney was given until January 16 next year to quit his two-bedroom home at 11 Wakeham Grove, Sheldon, and Mr McCann must leave his home at 9 Anstey Grove, Acock's Green, by the same date.

However, both are expected to now petition the House of Lords to hear last ditch appeals and they were granted 'stays of execution' until the Law Lords have had time to consider their cases.

Lord Justice Mummery, sitting with the Master of the Rolls, Lord Phillips, and Lord Justice Tuckey, rejected claims that there were 'exceptional' reasons why the two men should be allowed to stay in their homes.

Mr Bradney was left living alone in the Wakeham Grove property after his relationship with Tracey Bromwell broke down in December 2000 and she moved back to her mother's with her two daughters.

Ms Bromwell later signed a notice to quit although she had no idea at the time that this would also terminate Mr Bradney's right to stay in the house. He was 'shocked' to discover the tenancy had come to an end.

The council refused to grant him a new tenancy and, in March last year, launched possession proceedings, said Lord Justice Mummery.

Mr Bradney's lawyers argued the council had 'procured' Ms Bromwell's signature on the notice to quit. She had wanted to protect Mr Bradney's pos ition and had no idea of the document's legal consequences.

But Lord Justice Mummery ruled the notice to quit had ended Mr Bradney's tenancy, adding: 'There is nothing exceptional about the circumstances of the case or improper or unlawful in the conduct of the council'.

In Mr McCann's case, his wife Wendy and their two children lived with him in the Anstey Grove property until the marriage broke down in early 2001 amidst allegations of domestic violence.

Mrs McCann later obtained a non-molestion order against her husband and, in August 2001, she returned the keys to the council and wrote a note saying she was giving up the tenancy.

Lord Justice Mummery said she was re-housed by the council 'on the grounds of domestic violence' and, at the council's instigation, she later signed a notice to quit.

Mrs McCann, like Ms Bromwell, had no idea of the legal consequences of signing the document and her husband's counsel, Mr Stephen Cottle, argued the council had 'acted unlawfully, not just unfairly'.

By instigating Mrs McCann's signature on the notice to quit, the council had, he argued, 'short-circuited' the protections normally given to secure tenants.

However, Lord Justice Mummery rejected claims that Mr McCann's was one of those 'rare and exceptional cases' where Article 8 gave him a right to remain in the property.

The judge ruled: 'Article 8 is not available as a defence to the possession proceedings, even though the premises in question was the 'home' of the occupant for the purposes of the article.

'The council acted lawfully and within its powers in obtaining the notice to quit, which had the effect of terminating the secure tenancy.

'That notice to quit was effective, even though the notice was signed without appreciating the consequences for the occupier.'

He said Mr McCann's was not the type of 'wholly exceptional' case to which article 8 applied.

Both Mr McCann and Mr Bradney were refused leave to appeal to the Ho use of Lords, however both are now expected to petition the Law Lords directly for an appeal hearing.

Possession orders against them - which would otherwise take effect on January 16 next year - were 'stayed' pending the expected applications to the House of Lords.


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