Guernsey Law Reports 2009-10 GLR 157
KINLEY v. MINISTER OF THE HOUSING DEPARTMENT
ROYAL COURT (Collas, Deputy Bailiff and Jurats): May 28th, 2009
Housing—housing licences—Board’s discretion—may not fetter exercise of discretion by relying on opinion of another Government department without question—in considering applicability of departmental policy, not sufficient merely to decide that applicant falls outside policy—duty also to consider whether policy should be disapplied in appropriate circumstances
Housing—housing licences—compatibility with European Convention—under European Convention, art. 8(2), Board to justify proportionate interference with applicant’s rights under art. 8(1) when rejecting application—required to identify to applicant pressing need justifying interference, by specific reference to grounds stated in art. 8(2), e.g. economic well-being of Island, protection of rights and freedoms of others, etc.
Housing—housing licences—procedure of Board—Board to take meticulous care in considering applications and scrupulously balancing conflicting interests—documentation of decision-making process to be complete, including statements about matters discussed, full minuting of discussion, voting, etc.—decision to be communicated to applicant without delay, or delay explained—decision letter to give as much information as possible to enable applicant to exercise legitimate right of appeal
The appellant appealed against the refusal of the Board of the Housing Department to grant her a housing licence.
The appellant was born and raised in Northern Ireland, which she left at the age of 18 (she was now 41) and lived for no more than 2 or 3 years in any one place before coming to work in Guernsey in January 2001. She took up a teaching position at Vauvert Primary School and was granted an employment-related housing licence for 5 years and 8 months. In 2003 she bought a single-bedroom cottage and made her home here. She was a valued teacher and in July 2005, at the request of the Education Department, her housing licence was extended to August 2008.
In March 2008, she inquired from the Housing Department whether a further extension could be granted; her head teacher was prepared to apply on her behalf under the “Exceptional Teacher Scheme” then under
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discussion, which would allow valued teachers of quality to remain working in the Island for longer periods. The Department told her that the Scheme had not been finalized and that, when it was, any request that she be considered would have to be made by the Education Department.
At the end of May 2008, the appellant applied for a one-year “compassionate extension” to her current licence “until the Excellent Teacher Scheme [was] ratified.” She described in detail her work and achievements and explained that not only did she regard Guernsey as her home but also made it clear that, should she be forced to leave Guernsey, she would find herself homeless and without means of support. Her application was extensively supported by letters confirming her qualities and her value to the teaching and wider communities in the Island.
It was only in June 2008, at a meeting with the Director of Housing Control, that she was told for the first time that the Education Department could not put her forward under the Scheme as she was ineligible (for reasons which were not given but, according to an internal Housing Department note, because “there was no shortage of returning primary school teachers”). She sent further information about her work and personal circumstances and was supported enthusiastically by her head teacher, who was prepared to ask the Education Department to recommend an extension of her licence as, in his view, she met all the relevant criteria.
The Board of the Housing Department considered her application on July 3rd, 2008 on the sole basis that she was seeking a “compassionate licence,” without reference to any further employment-related licence. It rejected her application.
On appeal, she submitted that this decision was “unreasonable” within the meaning of s.56(1) of the Housing (Control of Occupation) Law 1994 for the following reasons:
The failure to consider s.6(2)(a) of the Law
It was mandatory for the Board to consider s.6(2)(a), since it stated that the Department had firstly to take account of the listed factors when considering an application for an employment-related licence. It had behaved improperly by not considering the provision at all, even though the appellant made it clear that she was applying for an extension of her employment-related licence and only referred to compassionate grounds because the Education Department would not put her name forward under the Excellent Teacher Scheme. She had made it clear that the whole purpose of her application was to enable her to continue to work as a teacher in the same school, to remain in her home in Guernsey and await the start of the Excellent Teacher Scheme.
The Department submitted in reply that s.6(2)(a) did not have to be considered in every case because it was conditional upon the application being for an employment-related licence, whereas here the appellant had been persuaded to apply solely on compassionate grounds.
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The failure properly to consider the European Convention, art. 8(1)
The parties were agreed that art. 8 of the European Convention was engaged because the Department’s decision was an interference with the appellant’s right to respect for her home and private life under that article. The appellant submitted, however, that the Department had failed to give proper regard to the breadth of the protection given by the European Court’s case-law to respect for her “home,” since it had simply emphasized that she had always known that her occupation of her cottage would be time limited and had never had any legitimate expectation of being able to remain in it indefinitely; similarly, it had not given sufficient regard to respect for her private and family life, since it treated almost with equanimity that she could not afford to buy an open-market property and, in the absence of a licence, would have to leave the Island.
The failure to justify interference under art. 8(2)
The appellant submitted that the Board (as a “public authority”) had failed to give proper effect to art. 8(2) since it had not satisfied the burden of proving that it was “necessary” to interfere with her rights and that it had done so in a proportionate way. The case-law of the European Court made it clear that interference with a human right only became “necessary” when a “pressing need” was identified and, although she inferred that the pressing need in this case (as in other housing cases) was the Island’s economic well-being, the Department was at fault for not making this clear. She was disadvantaged in not being able to examine properly the balance that had apparently been struck between her right to respect for her home, personal security and well-being and the pressing need to which the Department was seeking to respond.
The reliance on the Housing Needs Survey
In particular, the appellant submitted that, in seeking to protect the Island’s economic well-being, the Board was wrong to rely on the most recent Housing Needs Survey. This purported to show—as the Board emphasized to the appellant—that there was a net shortfall in the supply of new homes each year. As the situation was worsening, the Board concluded that it was necessary to ensure that the limited supply of available housing was given as a priority to those new households in which the householder was either a qualified resident or an existing licence-holder permitted to occupy a controlled dwelling in his/her own right.
In fact, the Housing Needs Survey was not capable of supporting the policy advanced by the Board. It failed to take into account the number of new homes that became available each year by the construction of new properties and conversions of old properties—instead, it based its conclusion on comparing the number of new households with the shortfall in the existing stock. It was necessary to consider all the new dwellings available from any source and it was certainly possible to argue that, if the supply of new dwellings exceeded the demand, there would be no justification for displacing the appellant from her home. And although the Survey pointed out that the demand for single-bedroom properties, which directly affected
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the appellant, was not so pressing, the Board ignored this qualification in dealing with her application.
The need for meticulous care
Although the appellant could not fault the meticulous care and concern shown by members of the Department’s staff in dealing with her case, the degree of care shown by the Board in dealing with these dramatic events in the appellant’s life had been less than convincing. When it notified her of its decision, it concentrated upon setting out its justifications for the rejection, specifically referring to the time-limited nature of her previous licences and its reliance on the Housing Needs Survey (for both of which, see above). The record of what purported to be the minutes of the meeting contained no record of the discussion or questioning of the application, no indication of the basis of the decision and no record of the voting, the unanimity, the dissents, the abstentions, etc. None of the documentation contained full enough information about the matters considered or not considered, or the Board’s understanding and application of the law, to allow her to exercise her legitimate right of appeal.
The Board submitted in reply that the decision letter was adequately expressed in terms accessible to a lay person and was not unnecessarily brief. It also pointed out that the minutes had been approved by the Board at its subsequent meeting, though there was no written evidence to that effect.
The significance of s.6(2)(b) of the Law
The appellant placed no reliance on the requirement in s.6(2)(b)(i) that the Board consider the strength of her “familial or like connections with Guernsey.” She had no “familial” connections by blood or marriage to the Island, was unmarried and, though her parents still lived in Northern Ireland, she did not feel that she had any real connection with that jurisdiction. Her “like” connections were not raised but the Board apparently considered that the phrase referred to her work and social connections in the Island.
She nevertheless criticized the Board’s treatment of the question of “the periods during which and the circumstances in which [the appellant had] been resident in Guernsey or elsewhere” (in s.6(2)(b)(ii)) as purely an arithmetical exercise. It had compared her length of residence in Guernsey (7 years and 8 months) with the length of her residence elsewhere in her life (34 years), without considering why she had lived elsewhere and without taking into account that, since leaving Northern Ireland to go to University, she had lived nowhere for more than 3 or 4 years before coming to Guernsey. She had stayed in Guernsey longer than anywhere else because she had made her home here, had been asked by the Education Department to stay on in her present teaching position, and the Housing Department had extended her housing licence by two years.
The significance of s.6(5)(e) of the Law
The appellant submitted that the Board’s apparent consideration of “such other factors as it may deem necessary or expedient,” under
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s.6(5)(e) of the Law, was unreasonable. It had referred in this context to her apparent confusion over her eligibility under the Excellent Teacher Scheme and noted that the Education Department had not requested a further licence for her under the Scheme, of which it said she should have been aware. It had therefore considered her application on the basis of her personal circumstances rather than with reference to her employment, which was wrong. It also again specifically referred to its reliance on the Housing Needs Survey, which it had misunderstood. After considering these matters together with the other factors stated in s.6(2)(b)(i) and (ii), referred to above, it had concluded that her application should be dismissed, which was unreasonable.
Held, allowing the appeal:
The failure to consider s.6(2)(a) of the Law
(1) The Board’s decision was unreasonable within the meaning of s.56(1) of the 1994 Law. It had been wrong not to consider s.6(2)(a) since this was the provision directly relating to applications for employment-related licences. The appellant’s application in May 2008 was made in the belief that she was applying for an employment-related licence—as evidenced by the terms of her letter, the supporting letters and the letter from her head teacher. The Board did not, however, consider it to be employment related because the Education Department had already told it that the appellant would not be put forward under the Excellent Teacher Scheme. This procedure was wrong because (a) the Board should not have fettered its discretion by relying on the view of the Education Department—it had a responsibility to make the decision itself and though it could receive advice and recommendations it could not abdicate that responsibility by relying solely on the opinion of another Department; (b) the decision that the appellant did not meet the criteria of the Excellent Teacher Scheme was not in itself enough, as the Board also had a duty to consider whether the policy should be disapplied in appropriate circumstances; (c) the Scheme was in any case only in draft and could not therefore be a conclusive consideration; (d) had the Scheme been adopted, it would have applied only to holders of 5-year housing licences, whereas the appellant had a 7-year and 8-month licence; (e) the Department had incorrectly told the appellant that only an employer could apply under the Scheme but, even if it had been true, the Department should in any case have been prepared to consider whether any exception could be made to that policy and should not have treated the application as “compassionate” merely because it had not been supported by the employer; and (f) the Board should have told the appellant the basis on which it had considered her application: having applied for a licence on the basis, inter alia, of her employment, she should have been told that it had not been considered on that basis (under s.6(2)(a)) and why not (paras. 23–29).
The failure properly to consider the European Convention, art. 8(1)
(2) The Jurats were satisfied that the Board had failed to consider and
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give effect to the breadth of the rights protected by art. 8(1). The right to respect for an individual’s private and family life had been interpreted by the European Court as including the right to develop and fulfil one’s own personality, from which followed the right to establish and develop personal and working relationships with others, whether in Guernsey or elsewhere, personal development, gender identification, name and sexual orientation—all reliant on the notion of personal autonomy. The right to respect for an individual’s home, though not defined or a legal term of art, suggested a pragmatic assessment of whether the place in question was in fact where the individual lived, to which he or she returned and which formed the centre of his or her existence. None of these considerations was mentioned by the Board, which was content to emphasize simply that the appellant knew that she had held housing licences which were limited in time, as if this knowledge also limited her rights under art. 8(1) (paras. 33–34).
The failure to justify interference under art. 8(2)
(3) Moreover, the Jurats concluded that the Board had not satisfied the burden of showing (as a public authority was required to do under art. 8(2)) that its interference with the appellant’s rights was proportionate and justified. The sub-section required it not to interfere with her right to respect for her home and private life unless it was “necessary in a democratic society.” It knew that its refusal of a licence would make it inevitable that the appellant would be forced to leave the Island and in these circumstances should have made it clear what pressing need it had identified that made it “necessary” in this case. It should have stated expressly on which of the grounds in art. 8(2) it relied—the economic well-being of the Island, the protection of the rights and freedoms of others, etc. (para. 38; paras. 76–77).
The reliance on the Housing Needs Survey
(4) If the economic well-being of the Island were indeed the justification for the Board’s interference with the appellant’s right to respect for her home and private life, it could not be supported by its reliance on the Housing Needs Survey. This gave no genuine statistical support to the claim that there was a net shortfall in the supply of new homes each year, so as to justify the Board’s giving priority to qualified residents or existing licence-holders permitted to occupy a controlled dwelling in their own right. The Survey in fact failed to take into account the number of new homes becoming available each year by the construction of new properties and conversions of old properties—instead, it based its conclusion on comparing the number of new households with the shortfall in the existing stock. It was necessary to consider all the new dwellings available from any source and, as the appellant had argued, if it could be shown that the supply of new dwellings exceeded the demand for them, there would be no justification for displacing her from her home. Moreover, although the Survey had confirmed that the demand for single-bedroom properties was less than the general demand, the Board ignored this qualification even
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though it was of direct relevance to the appellant’s application (paras. 42–45; paras. 78–79).
The need for meticulous care
(5) The Jurats concluded that the Board had failed in its duty to exercise the high degree of care required and scrupulousness in balancing the conflicting interests, which had been emphasized in previous Guernsey case-law. Although meticulous care and concern had been shown by members of the Department’s staff in handling the appellant’s case, the Board’s care in dealing with this “drastic interference with the appellant’s life” had been less than convincing. The document recording its rejection of the application made no statement about the matters discussed; what purported to be the minutes of the meeting contained no record of the discussion or questioning of the application, no indication of the basis of the decision and no record of the voting, the unanimity, the dissents, the abstentions, etc. Nor had any explanation been given for the delay in informing the appellant of the decision—a decision which had been made on July 3rd, but the appellant not notified until August 19th (paras. 48–52; paras. 63–65; paras. 75–76).
(6) Even the decision letter itself was inadequate. Its main purpose should have been to inform the applicant of the decision and the precise reasons for it. It should have contained enough information about the matters considered or not considered and the Board’s understanding and application of the law to allow the applicant to exercise her legitimate right of appeal. It should have been as full as possible—but the impression conveyed here was of an abject failure on the part of the Board to consider the matter properly, or, if it had done so, a failure properly to explain the reasons for the refusal (paras. 54–57).
The significance of s.6(2)(b) of the Law
(7) As s.6(2)(b)(i) was no wider than the interpretation of “family life” in art. 8 of the European Convention, and the Board had treated the scope of s.6(2)(b)(ii) as narrower than the considerations under art. 8, in the light of the Jurats’ conclusions on these matters, the court would not consider the paragraph further (paras. 66–71).
The significance of s.6(5)(e) of the Law
(8) For the reasons already given, the Board had been wrong to consider the application solely on the basis of the appellant’s personal circumstances, without reference to her employment, and wrong to rely on its misapprehension of the thrust of the Housing Needs Survey. If it believed that these were “such other factors as it [might] deem necessary or expedient” to consider under s.6(5)(e) of the Law, it was mistaken and its findings remained unreasonable (paras. 72–73).
Cases cited:
(1) Gillow v. United Kingdom (1986), 11 EHRR 335; [1986] ECHR 9063/80; (1986), 4 GLJ 50, applied.
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(2) Matheson v. States Housing Auth. (1998), 26 GLJ 82, dicta of Beloff, J.A. applied.
(3) Thomas v. Housing Dept. (Minister), 2007–08 GLR 251, observations of Finch, Lieut. Bailiff applied.
(4) W (An Infant), In re, [1971] A.C. 682; [1971] 2 W.L.R. 1011; [1971] 2 All E.R. 49, dicta of Lord Hailsham of Marylebone, L.C. considered.
(5) Walters v. States Housing Auth. (1997), 24 GLJ 76, dicta of Beloff, J.A. applied.
(6) Ward v. States Housing Auth. (1989), 20 GLJ 94, dicta of Le Quesne, J.A. applied.
P.T.R. Ferbrache for the appellant;
R.T. Sewards, Crown Advocate, for the respondent
1 COLLAS, DEPUTY BAILIFF:
Introduction
This is an appeal under s.56 of the Housing (Control of Occupation) (Guernsey) Law 1994 against a decision of the Board of the Housing Department refusing to grant a housing licence to the appellant.
2 The Board considered the application at its meeting on July 3rd, 2008 and, by letter dated August 19th, 2008 signed by the Director of Housing Control, the appellant was advised that her application had been rejected. We refer to the respondent, including its predecessor the States Housing Authority, as the “Department.”
3 Section 56(1) of the 1994 Law provides that the grounds for an appeal against a decision of the Department are that the decision was ultra vires or was an unreasonable exercise of the Department’s powers. The latter is the only ground relied upon in this appeal.
4 This is the decision of the court. Pursuant to s.14(2) of the Royal Court (Reform) (Guernsey) Law 2008, the Deputy Bailiff did not sum up to the Jurats in open court, but instead retired with them. The Deputy Bailiff reminded the Jurats of their respective roles—the Deputy Bailiff as the
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sole judge of questions of law and procedure and the Jurats as the sole judges of questions of fact.
5 The Deputy Bailiff directed that, save in respect of art. 8 of the European Convention on Human Rights (“ECHR”), the burden of proof is on the appellant (s.56(3) of the 1994 Law) and the standard of proof is the civil standard of the balance of probabilities; to establish something on the balance of probabilities means to prove that something is more likely so than not so. In relation to art. 8 of the ECHR, the Deputy Bailiff’s direction is given later in this judgment.
Facts
6 The Jurats took account of the facts presented to the Department in connection with its decision. The key facts include:
(a) The appellant, who was 41 years of age, was born and educated in Northern Ireland but has lived away from Northern Ireland since the age of 18; she lived for no more than three or four years in any one place until she moved to Guernsey.
(b) The appellant is a qualified teacher and moved to Guernsey in January 2001 to take up a teaching post at Vauvert Primary School.
(c) From January 2001, the appellant had always held a housing licence granted in connection with her employment.
(d) The first housing licence was issued to her dated January 31st, 2001 on condition that “this licence will remain valid provided that the licensee continues to be employed on a full-time basis as a Teacher Responsible for Humanities at Vauvert Primary School by the States Education Council in Guernsey.” The licence was valid only until August 31st, 2006.
(e) On November 12th, 2001, a second licence was granted to the appellant because she had moved to a new rented dwelling. The licence was subject to the same conditions as her first licence.
(f) On November 1st, 2002, the appellant wrote to the Housing Authority enquiring as to what kind of property she might be permitted to purchase, to which the Department replied on November 14th, 2002.
(g) In 2003, the appellant purchased her own property, “Rosaire Cottage”, Duveaux Lane, St. Sampson. It is a modest unit of accommodation suitable for one person only, as described in a letter dated June 18th, 2008 from Cooper Brouard, Estate Agents, who said the accommodation amounts to approximately 500 sq. ft. in total and, in effect, comprises two habitable rooms for the purpose of the housing licence regulations.
(h) On May 2nd, 2003, the Department advised the appellant that her application for a housing licence to occupy “Rosaire Cottage” had been
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granted and would be valid from May 27th, 2003 until August 31st, 2006 “provided that you continue to be employed on a full time basis as teacher responsible for humanities at Vauvert Primary School by the States Education Council in Guernsey.”
(i) On May 13th, 2005, the Education Department wrote to the Department requesting a two-year extension to the appellant’s licence on the grounds, inter alia, that she “is an able teacher who has made a considerable contribution to the work being undertaken at the school. She has taken on responsibility for History and Geography and is engaged in developing these areas of the curriculum.” It was clear from the Education Department’s letter that the appellant was a valued member of staff who, for several reasons, it did not wish to lose.
(j) By letter dated July 26th, 2005, the Department advised that the appellant’s application for a licence extension had been granted on condition that “this licence will remain valid until August 31st, 2008, provided that you continue to be employed on a full-time basis as a Key Stage 2 teacher at Vauvert Primary School by the Education Department in Guernsey.”
(k) On August 22nd, 2005, the licence was amended by the Department to correct the fact that she had become a Key Stage 1 teacher and, again, was valid until August 31st, 2008.
(l) The total period of time during which the appellant held an employment-related licence was seven years and eight months, from January 2001 to August 2008.
7 On March 10th, 2008, the appellant began the process that led to the decision that is the subject of this appeal. She wrote to the Department enquiring about the possibility of a further licence to enable her to stay in Guernsey on the basis that her head teacher would like her to continue working at Vauvert Primary School and he was aware that the Department and the Education Department were discussing an “Excellent Teacher Scheme which would attempt to allow excellent teachers to remain within Guernsey.” The letter advised that if the Scheme were in place, her head teacher would make an application on her behalf as he did not want to lose her as a valued member of staff.
8 By letter dated March 19th, 2008, the Department advised the appellant that an “Exceptional Teacher Policy” was being finalized with the Education Department. However, any request under that scheme must be made by the employer, i.e. the Education Department, rather than the licence holder.
Exceptional Teacher Scheme
9 We will now digress and explain the Exceptional Teacher Policy because the Jurats consider that it led to considerable confusion in the
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mind of the appellant who believed she would be eligible to remain in the Island under the terms of that policy. Her head teacher also appears to have been confused by it because on June 10th, 2008 he wrote to the Department, on official Education Department notepaper, saying that the appellant met all the criteria, even though Crown Advocate Sewards said it was not the head teacher’s responsibility to assess all the criteria; a head teacher was only responsible for assessing the Band 1 Criteria and the Band 2 Criteria were for the Education Department officials to consider, not the schools. The court was told that the policy was only in draft form when the appellant applied. We were not told whether the policy has ever come into force.
10 The draft policy states that a request to extend the housing licence of a teacher/lecturer will be based on a high score on the Band 1 Criteria; those criteria relate to the teaching skills and all-round contribution of the teacher/lecturer. In broad terms, the Band 1 Criteria are designed to assess whether he/she is an exceptional classroom teacher. Then, the individual will be scored on the Band 2 Criteria; these relate to the difficulty in recruitment and whether there are candidates with local residential qualifications.
11 The court has seen nothing in writing from the Education Department to explain why it would not put her name forward. There is a file note of a meeting the appellant attended with Esther Ingrouille, the Director of Housing Control at the Department on June 13th, 2008. The note records:
“Despite many attempts to explain to Miss Kinley that the Education Department had indicated that she could not be put forward under the scheme (I had previously spoken with Jocelyn Dorey who confirmed that Miss Kinley had been informed that she would not be put forward), she seemed reluctant to accept this fact, saying that her ineligibility for the scheme was a complete shock.”
12 The point is considered in a report prepared by L. Ward, an official of the Department, for the benefit of Board members. The report suggests the reason the Education Department would not consider the appellant was because “there was no shortage of returning primary school teachers.”
Basis for the application
13 At the meeting of June 13th, the appellant was advised by Ms. Ingrouille that her letter of May 31st would be treated as a request for a “compassionate” licence. It seems to the Jurats that the appellant accepted that advice; perhaps with some reluctance as she wanted a housing licence not only so that she could remain in her teaching post at Vauvert School but also to continue living in her house which she regarded as her home and to continue her life in Guernsey.
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14 The appellant’s letter of May 31st had sought a housing licence for one year as a “compassionate extension on my current licence until the Excellent Teacher Scheme is ratified.” In that letter, the appellant described her responsibilities and achievements as a member of the staff of Vauvert Primary School, explained her salary, described her background and summarized the work she had undertaken to participate in a number of charitable events on behalf of the wider community. The appellant also stated that, although born in Northern Ireland, she has never worked there and has no links to the world of education in Northern Ireland and thought it was very unlikely she would find an appointment there. The letter explained that she considered her home to be in Guernsey and said: “Thus, I would be without a home and without a means of supporting myself should I be forced to leave Guernsey.”
15 It was supported by letters confirming her value to the school, to the community and testifying as to her qualities as a teacher—from her head teacher; from a GP who knew her personally and who knew the quality of her work through a number of his patients whose children attend the school “and they invariably speak very highly of her”; from her line manager at Vauvert Primary School; from a fellow teacher at the school; from the Divisional Secretary of the Guernsey Teachers’ Association of the National Union of Teachers testifying as to the work that she had done as a member of the Executive of the Guernsey Branch of the Union; from the Minister of the Church of Scotland; from a member of the Vauvert School PTA; and from the Music Subject Leader at the school.
16 A further letter was sent by her head teacher on June 10th, 2008, stating that he would have made a request to the Education Department for her to be granted an extension of licence as, in his opinion, she met all the relevant criteria.
17 After her meeting with Ms. Ingrouille and a colleague at the Department on June 13th, 2008, she wrote again to the Department with more information about her work and personal circumstances and requesting “an extension to my current licence on compassionate grounds. The delay and confusion of suitability for the ‘Excellent Teacher Scheme’ has left me in a most unenviable position.” The letter concluded in the penultimate paragraph:
“I appreciate that you may have other applications of this nature. I do not make appeals lightly, but my life is under threat. My home is here and it is threatened. I did not expect for Guernsey to become my home in the time I was here. Initially I expected to stay approximately three years as I had done in other positions, but my residence became my home. I am an excellent teacher. I am an asset to the community and I belong here. I know that exceptions have been made for my colleagues because they have young families, so,
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should I be treated unfairly because I do not have a family? I am further penalised by not having a significant enough relationship breakdown, which I know has engendered compassion towards colleagues.”
18 The report prepared for consideration by the Board at its meeting on July 3rd, 2008 was headed “Miss J.G. Kinley—request for compassionate licence” and advised that the appellant was seeking a compassionate licence. So, the members of the Board did not consider whether to grant a further licence on employment-related grounds. Several interconnected issues arise from that fact, including whether the Board wrongly failed to consider the application under the provisions of s.6(2)(a) of the 1994 Law and whether the decision can be criticized by reason of having incorrectly applied a policy, when it was wrong to do so.
Section 6(2)(a) of the 1994 Law
19 Section 6(2)(a) of the 1994 Law provides that the Department—
“shall firstly consider—
(a) where the application is made in order to enable a person to occupy a dwelling so that he may undertake employment in Guernsey, all or any of the following matters . . .” [Emphasis supplied.]
20 Advocate Ferbrache argued that was a mandatory requirement that the Department wrongly ignored by giving no consideration to s.6(2)(a). Crown Advocate Sewards submitted that s.6(2)(a) is conditional in that the Department is only required to consider it where an application is made in order to enable the applicant to occupy a dwelling in order to undertake employment in Guernsey.
21 The appellant’s application was not considered under s.6(2)(a) for the reason that, as we have already explained, the appellant was told or persuaded to apply on compassionate grounds only because the Education Department would not put her name forward under the “Excellent Teacher Scheme.”
22 Advocate Ferbrache referred to a passage in the judgment of Beloff, J.A. in Matheson v. States Housing Auth. (2), where he said (26 GLJ 82, at p.70) that the then Housing Authority—
“. . . can have a policy as long as two conditions are satisfied. The first is that the policy conforms with the law; a policy can not modify, extend, still less contradict such law. The second is that those who apply the policy are prepared to listen to reasons why it should not be applied in a particular case and in consequence, in appropriate circumstances, to make exceptions to it.”
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23 When the appellant wrote to the Department on May 31st, 2008, she believed she was applying for a licence in connection with her employment; that is evidenced by the contents of her letter, the supporting letters and especially the letter from her head teacher. She was entitled to expect that the application would be considered by the Board of the Housing Department under s.6(2)(a) of the 1994 Law. The reason she was not considered under that paragraph is because officials of the Department understood that the Education Department was not prepared to put her forward under the “Excellent Teacher Scheme.” The court is of the view that that was wrong in a number of respects.
24 First, it appears to transfer responsibility for deciding which teachers are entitled to an employment-related licence from the Housing Department to the Education Department. The 1994 Law bestows responsibility for such a decision on the Department; it is understandable and entirely lawful that the Department should seek the views of the Education Department before considering such applications from teachers employed by the Education Department but that Department can only advise and recommend: the decision to grant or refuse such a licence must be taken by the Housing Department. That Department must not fetter its discretion by relying solely on the opinion of the Education Department.
25 Secondly, officials appear to have decided that because the appellant did not meet the criteria of the “Excellent Teacher Scheme,” that was decisive. If so, they failed to satisfy the second of the two conditions identified by Beloff, J.A. in Matheson (2) quoted above; they had an obligation to consider disapplying the policy when appropriate.
26 Thirdly, the policy was only in draft.
27 Fourthly, if the policy had been adopted it would have applied to the holders of a five-year housing licence and the appellant held a licence of seven years and eight months’ duration. So the policy would not have applied to the appellant.
28 Fifthly, the view seems to have been taken that only an employer could apply for an employment-related licence. The 1994 Law does not contain any such restriction. It may be the Department’s policy only to consider such applications if supported by the employer but, if so, such policy must satisfy the two conditions identified in Matheson and the Department must be prepared to depart from the policy when appropriate. The Department’s officials could properly advise an applicant that an application is unlikely to be successful if it is not supported by the employer but they must not fetter the Department’s discretion by saying that an employment-related application can only be considered on compassionate grounds if it is not so supported.
29 Another failing was that, in the Department’s letter of August 19th,
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2008 informing her of its decision, the appellant was not informed that it had not considered the application under s.6(2)(a). Having applied for a licence on the grounds, inter alia, of her employment, the appellant was entitled to be told it had not been considered on that basis and to be told why not. In fact, if the Department had written that it would not consider the appellant on such ground because her application was not supported by the Education Department, that would immediately have highlighted the fact that the Department was unduly fettering its decision-making responsibility.
30 Crown Advocate Sewards argued that the appeal cannot now be pursued on the basis of a failure to consider it under s.6(2)(a) because that would be ultra vires and the only ground pleaded in the appeal is that the decision was unreasonable. Such a defect could be overcome by amendment and it would not be too late, even at this stage, to allow Advocate Ferbrache to amend. However, we do not need to do so because there are other grounds on which the appeal may succeed.
Article 8 of the European Convention on Human Rights
31 Article 8(1) confers upon the appellant “the right to respect for her private and family life, her home and her correspondence.” The Human Rights (Bailiwick of Guernsey) Law 2000, which came into force on December 1st, 2006 (“the Human Rights Law”), incorporated art. 8 into our domestic law. Section 3 of the Human Rights Law requires all legislation, including the 1994 Law, to be read and given effect in a way which is compatible with the Convention rights. Section 2 of the Human Rights Law requires the court, in this appeal, to take into account judgments of the European Court of Human Rights and certain opinions and decisions of the Commission.
32 The parties are agreed that art. 8(1) is engaged because the Department’s decision is an interference with the appellant’s rights thereunder. The parties are also agreed, and the Deputy Bailiff directed the Jurats, that the burden of proof moves to the Department to demonstrate that its decision is justified under art. 8(2). That is in accordance with the earlier decision of the Royal Court handed down by Finch, Lieut. Bailiff in Thomas v. Housing Dept. (Minister) (3) in which (2007–08 GLR 251, at para. 37), he held that there was no tension between the provisions of art. 8(2) and s.56(3) of the 1994 Law. He said that the Department has the burden of justifying that the interference under art. 8(1) is justified and, at the end of the day, the appellant has the burden in the housing appeal.
33 The appellant is not seeking a declaration that the 1994 Law is incompatible with the ECHR. The European Court has decided that our Housing Laws are human rights compliant (Gillow v. United Kingdom (1)) but the Department must interpret them in a manner which is
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compatible with the ECHR. The appellant asserts that the Department has failed to do so in this case by failing properly to apply art. 8(2), which provides:
“There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
34 The concept of private life is to be widely interpreted and has not been clearly defined, but the Deputy Bailiff directed the Jurats to take account of the following passage in Lester & Pannick, Human Rights Law & Practice, 2nd ed., para. 4.8.18, at 269 (2004):
“In the leading case of Niemietz (1992) 16 EHRR 97, the ECt HR, pronounced that:
‘The court does not consider it possible or necessary to attempt an exhaustive definition of the notion of “private life”. However, it would be too restrictive to limit the notion to an “inner circle” in which the individual may live his own personal life as he chooses and to exclude therefrom entirely the outside world not encompassed within that circle. Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings.
There appears, furthermore, to be no reason of principle why this understanding of the notion of “private life” should be taken to exclude activities of a professional or business nature since it is, after all, in the course of their working lives that the majority of people have a significant, if not the greatest, opportunity of developing relationships with the outside world . . . especially in the case of a person exercising a liberal profession, his work in that context may form part and parcel of his life to such a degree that it becomes impossible to know in what capacity he is acting at a given time.’
An individual’s right to relate socially with others is part of the right to develop and fulfil one’s own personality and to lead one’s life as one chooses. However, the concept spreads wider as identified by the ECt HR in the case of Pretty v United Kingdom when it stated:
‘[T]he concept of “private life” is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person . . . It can sometimes embrace aspects of an individual’s physical and social identity . . . Elements such
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as, for example, gender identification, name and sexual orientation and sexual life fall within the personal sphere protected by art 8 . . . Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside worlds . . . Though no previous case has established as such any right to self-determination as being contained in art 8 of the Convention, the court considers that the notion of personal autonomy is an important principle underlying the interpretation of its guarantees’.”
As for the notion of “home,” the learned authors wrote (op. cit., at para. 4.8.70):
“The use of the term ‘home’ appears to invite a pragmatic consideration whether the place in question is that where a person ‘lives and to which he returns and which forms the centre of his existence’. ‘Home’ is not a legal term of art and art 8 is not directed to the protection of property interests.”
35 The Deputy Bailiff directed the Jurats that they might find it helpful to see how the European Court of Human Rights applied art. 8 in its decision in the case of Gillow v. United Kingdom (1). The court summarized the principles as follows (11 EHRR 335, at para. 55):
“As to the principles relevant to the assessment of the necessity of a given measure in a democratic society, reference should be made to the Court’s case law. The notion of necessity implies a pressing social need; in particular, the measure employed must be proportionate to the legitimate aim pursued. In addition, the scope of the margin of appreciation enjoyed by the national authorities will depend not only on the nature of the aim of the restriction but also on the nature of the right involved. In the instant case, the economic well-being of Guernsey must be balanced against the applicants’ right to respect for their home, a right which is pertinent to their own personal security and well-being. The importance of such a right to the individual must be taken into account in determining the scope of the margin of appreciation allowed to the Government.”
36 Next, the court asked whether the Gillows’ obligation to obtain a housing licence complied with those principles and it concluded (ibid., at para. 56):
“Whilst recognising the relevance of the facts relied on by the applicants, the Court considers that the Guernsey legislature is better placed than the international judge to assess the effects of any relaxation of the housing controls. Furthermore, when considering whether to grant a licence, the Housing Authority could exercise its discretion so as to avoid any disproportionality in a particular case. It
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follows that the statutory obligation imposed on the applicants to seek a licence to live in their home cannot be regarded as disproportionate to the legitimate aim pursued.
There has accordingly been no breach of Article 8 as far as the terms of the contested legislation are concerned.”
37 Then the court considered whether in the circumstances of the Gillows’ case the refusal of a housing licence was proportionate to the legitimate aim of the legislation (ibid., at paras. 57–58):
“57. There remains, however, the question whether the manner in which the Housing Authority exercised its discretion in the applicants’ case—refusal of permanent and temporary licences, and referral of the matter to the Law Officers with a view to prosecution—corresponded to a pressing social need and, in particular, was proportionate to the legitimate aim pursued.
The statistics submitted to the Court show that, during the relevant period—1979 and 1980—the population of the island had been kept within the levels of recent years, having even marginally declined and the availability of houses for occupation had not suffered any significant deterioration. Against this background, whilst not overlooking the fact that the average population per square mile of the island was still high in comparison with other countries, the Court considers that insufficient weight was given to the applicants’ particular circumstances. They had built Whiteknights as a residence for themselves and their family. At that time, they possessed residence qualifications and continued to do so until the entry into force of the Housing Law 1969, so that during that period they were entitled to occupy the house without a licence. The property was Mr. and Mrs. Gillow’s place of residence for two years before they left Guernsey in 1960. Thereafter, they had retained ownership of the house and left furniture there. By letting it over a period of eighteen years to persons approved by the Housing Authority, they contributed to the Guernsey housing stock. On their return in 1979, they had no other home in the United Kingdom or elsewhere; Whiteknights was vacant and there were no prospective tenants.
As for the refusals of the temporary licences, the decisions of the Housing Authority were, despite the granting of certain periods of grace, even more striking. Whiteknights needed repairs after eighteen years of rented use, with the result that it could not be occupied in the meantime by anyone other than the applicants.
Finally, as regards the referral of the case to the Law Officers with a view to prosecution, the Government stated that the Housing Authority deferred taking this course on several occasions. This, however, in
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the Court’s view did not materially alleviate Mr. and Mrs. Gillow’s already precarious situation.
58. The Court therefore concludes that the decisions by the Housing Authority to refuse the applicants permanent and temporary licences to occupy Whiteknights, as well as the conviction and fining of Mr. Gillow, constituted interferences with the exercise of their right to respect for their home which were disproportionate to the legitimate aim pursued.”
38 The Gillow decision shows that the European Court expressly identified that the pressing social need to be protected was the economic well-being of the Island. In the present case, Advocate Ferbrache has criticized the Department for not making clear the pressing need it identified. He says the appellant has inferred that it is the Island’s economic well-being, although it could be the protection of the rights and freedoms of others. The court agrees that in explaining the reasons for its decision, the Department should state expressly the grounds on which it considers that it is entitled to interfere with an applicant’s art. 8(1) rights.
39 In seeking to protect the Island’s economic well-being, the Department has relied upon statistical information; not population statistics as in Gillow, but the Housing Needs Survey.
Housing Needs Survey
40 The Housing Needs Survey was published in September 2007 and reproduced as an appendix to the Billet d’Etat XXV in December 2007. Crown Advocate Sewards appeared to submit to the court that, because the Housing Needs Survey was published as an appendix to a Billet d’Etat, it represented an approved policy of the States of Deliberation. The Deputy Bailiff directed the Jurats that a report which is merely published as an appendix to a Billet d’Etat is not ordinarily debated and hence is not approved by the States. A Department that wants a report to be formally approved may table it for debate with an appropriate proposition. Or, if it does not do so, any two members of the States may propose and second a motion calling for it to be debated. The Jurats consider that given the importance the Department attached to the Housing Needs Survey it would not have been surprising if the Department had sought formal approval from the States. However, neither the Department nor any other States’ members sought a debate, so the Survey was never debated and it cannot now be elevated to the status of a formal policy of the States of Deliberation.
41 In its letter to the appellant of August 19th, 2008, the Department said the following about the Housing Needs Survey:
“The report indicated that new or ‘emerging’ households were being formed in the Island at a rate of 489 households per year with 81% of
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those new households being single people or couples without dependent children. When compared to the number of households that cease to exist, this leaves a net shortfall in supply of 340 new homes each year. This compared with a net shortfall of only 179 households per year based on the findings of a similar survey conducted in 2001.
Therefore, the Board concluded that there was a need to ensure that the limited supply of housing available within the Island was prioritized for those new households where the householder is either a qualified resident or an existing licence holder who is permitted to occupy a controlled dwelling in their own right.”
42 Advocate Ferbrache criticized the Board’s interpretation of the findings of the Survey. He said the Survey calculated the net increase in the number of new households that are being created each year and equated that figure to a shortfall in the supply of new homes, without taking into account the number of new homes that become available as a result of the construction of new properties or the conversion and renovation of old properties.
43 At para. 1.4 of the Survey Report, it states: “The study was comprehensive in considering the different components of housing requirements and supply.” An uninformed reader might assume that “supply” includes new developments and conversions. However, the final sentence explains: “These gross housing requirements were offset against the likely supply of housing within the existing stock to yield a net requirement for additional housing.” [Emphasis supplied.]
44 On closer reading, it is thus clear that the Survey does not take into account new constructions and conversions. However, when calculating any shortfall in the requirement for one-bedroom accommodation, the court accepts Advocate Ferbrache’s comments that if it is considering the economic well-being of the Island by reference to the number of dwellings required to cope with an increase in households, the Department should take account of the supply of new dwellings. That is especially important because a number of States’ Departments, not least the Housing Department, have adopted policies to ensure new dwellings are created. Advocate Ferbrache argues that if the supply of new dwellings exceeds the demand, there would be no justification in displacing the appellant from her home.
45 A further issue raised by Advocate Ferbrache is that the Department appear to have taken into account the total number of new households each year, 340, whilst ignoring the fact that the Survey concludes (at 76) that only 187 of those require just a single bedroom.
46 Advocate Ferbrache submitted that the States Cadastre will be able to provide information as to the number of new units that have been created
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in any one year and so that information would have been available to the Department. Crown Advocate Sewards did not refute that suggestion but merely stated that the Housing Needs Survey demonstrated that the problem has become much worse since an earlier survey was conducted in 2001.
The need for meticulous care
47 The court was referred to a number of earlier appeals such as Ward v. States Housing Auth. (6) and Walters v. States Housing Auth. (5), in which the courts have observed that our Housing Laws are formidable enactments that place great and unusual powers in the hands of the Department. In Ward, Le Quesne, J.A., said (20 GLJ 94, at para. 34): “We wish to emphasise, however, that such drastic power calls for meticulous care in its exercise and scrupulous balancing of the conflicting interests which it affects.”
48 The documents produced to the court in connection with the present appeal indicate that staff members of the Department have exercised meticulous care in the handling of the appellant’s case and they have tried to be as helpful as they can when assisting her in the presentation of her application. However, the Jurats are concerned that the documentation does not demonstrate that the members of the Board of the Department, who were responsible for taking the decision to reject the appellant’s application, have approached the matter with the same degree of meticulous care that such a drastic interference with her life merits and demands. It begs the question whether there was any, or any adequate, discussion and consideration by the Board of the conflicting interests before it reached its drastic conclusion.
49 Evidence of the attention devoted to the matter by the Board is to be found in three documents. First of all, the Board paper is annotated in two places with the words “Yes—application rejected,” initialled by an official and dated July 3rd, 2008. It thus appears to be a contemporaneous note of what took place when the application was discussed by the Board. It records the Board’s decision, but does not record any matters discussed.
50 The next document is headed “Case Work Meeting—minutes of the meeting held on July 3rd, 2008.” It appears to be an extract of minutes of the meeting of the Board of the Department that day and excludes a number of items not relevant to the appeal. Six Board members were present, although two left when the appellant’s application was discussed, having declared an interest in the matter. Also present were six officers of the Department. The minutes summarize the factual basis for the application, but they do not record any discussion or questioning of the application, or the basis upon which the decision is to be reached, or any other matters that would normally be expected if the Board were approaching
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the matter with meticulous care and scrupulously balancing the conflicting interests. The minutes record that the Board agreed with the recommendation to refuse the licence, but they do not state whether that was unanimous, or by a majority with dissenting votes or abstentions. In short, they lack the characteristics of a full and comprehensive set of minutes.
51 Crown Advocate Sewards advised the court that the minutes had been approved by the Board at its subsequent meeting, but there was no written evidence disclosed to show that that was correct, or even to show that the minutes had been seen by any members of the Board.
52 The third document is the letter from the Department dated August 19th, 2008 to the appellant advising her of the decision. It is signed by the Director of Housing Control, not by the Minister or any other member of the Board. Advocate Ferbrache questioned why the letter took so long to prepare and no explanation has been provided as to why it took from July 3rd to August 19th to advise the appellant of the Board’s decision.
53 In some of the earlier judgments of the Court of Appeal and the Royal Court, the Department has been criticized for giving only the briefest of reasons to explain why an application had been rejected. In this case, the court accepts that the Department has clearly taken steps to improve that unsatisfactory position. Crown Advocate Sewards made a number of comments about what is required of the decision letter, including the need for it to be expressed in terms that can be understood by a lay person so that it be intellectually accessible. He commented that a 25-page letter would not necessarily be any better than a shorter letter.
54 In the respectful view of the court, Crown Advocate Sewards may have misunderstood the main purpose of the letter which is to explain the reasons for the Board’s decision, as well as informing the applicant of the decision. The applicant is entitled to know the precise reasons why the Board rejected an application. If the decision maker has misunderstood the application, or has taken account of irrelevant material, or has failed to take account of relevant material it should have taken into account, or has misunderstood or misapplied the law, or if the decision-making process is otherwise fundamentally flawed, the applicant is entitled to be told. Otherwise, he or she cannot properly exercise his or her legitimate right of appeal. As Le Quesne, J.A. said in Ward (6) (20 GLJ 94, at para. 25): “An Applicant who is not told the full reasons for the refusal of the application cannot exercise this right of appeal effectively.”
55 The Board has a responsibility to inform the appellant of the full reasons for its decision; if the discussion by the Board was so detailed that it could fill a 25-page letter, then that was what the appellant should have received. Instead, the impression given is that of an abject failure by the Board to consider the matter properly or, if it did so, a failure properly to explain the reasons for the refusal of the housing licence.
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56 So, the main purpose of the Department’s letter dated August 19th, 2008 was to inform the appellant of the reasons why the Board decided to reject her application at their meeting on July 3rd, 2008. It was not the purpose of the letter to seek to bolster the decision-making process by attributing reasons to the Board that they did not in fact give or by explaining their decision in more favourable terms in the hope of rendering the decision appeal-proof.
57 Having carefully considered the documents, the Jurats have concluded that the Board failed in its duty to exercise meticulous care and to balance scrupulously the conflicting interests.
The Department’s reasons
58 The reasons given by the Department in its letter dated August 19th, 2008 for concluding that it was justified in interfering with her art. 8 rights are stated as follows.
59 The Board noted that the property purchased in May 2003 was regarded by the appellant as her home, but stated that from the very outset she had known her occupation of it would be time limited and never had any legitimate expectation of being able to remain in it. Mindful of the Housing Needs Survey’s showing that the type of property that she occupies would fall “into the category of those for which there was the greatest demand to provide for the needs of emerging households” the Board concluded that interference with her art. 8(1) right to her home was justifiable under the provisions of art. 8(2).
60 The Department then considered the effect the decision would have on her right to respect for private and family life under art. 8(1). The Board noted that her financial circumstances were such that she would not be able to afford an open market dwelling and hence would have little alternative but to relocate from Guernsey. It said: “However, once again the Board considered that the extent of its interference was proportionate and justifiable . . . as a result of the findings of the Housing Needs Survey.”
The test of reasonableness
61 The Deputy Bailiff reminded the Jurats of the guidance given by Beloff, J.A. in Walters v. States Housing Auth. (5) (24 GLJ 76, at p.47), quoting the words of Lord Hailsham of St. Marylebone, L.C. in In re W (An Infant) (4) ([1971] A.C. at 700):
“Not every reasonable exercise of judgment is right, and not every mistaken exercise of judgment is unreasonable. There is a band of decisions within which no court should seek to replace the individual’s judgment with his own.”
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The court’s decision in respect of art. 8
62 The Jurats have concluded that the Department has failed to show that the extent of its interference with the appellant’s art. 8 rights was proportionate and justified. The Board acknowledged that the appellant’s financial circumstances were such that its decision would result in her leaving the Island as she could not afford to remain here.
63 The Department has failed to show that it considered the appellant’s family life and home in the very broad context in which those concepts have been interpreted by the European Court in the cases we have quoted above. The Department appears to have placed too much emphasis on the fact that the appellant knew she held housing licences that were limited in time, without looking at the wider notions of “private life” and “home.”
64 The Department failed to state the basis it relied upon in interfering with her rights, but if the basis was the economic well-being of Guernsey, the Department placed too much emphasis on the findings of the Housing Needs Survey without taking into account the supply of new housing stock.
65 The appellant has persuaded the Jurats that the Department failed to treat her application with the meticulous care it demanded and that it did so unreasonably.
Section 6(2)(b)(i) of the 1994 Law
66 Section 6(2)(b)(i) of the 1994 Law requires the Department to have regard to the strength of the appellant’s “familial or like connections with Guernsey . . .”
67 The Deputy Bailiff directed the Jurats that in this context, “familial connections” is taken to mean an applicant’s connections by blood and marriage. The appellant has no relatives in Guernsey, she is unmarried and hence she has no familial connections with the Island; her parents live in Northern Ireland, although no longer in the area where she was born, and she feels she no longer has any real connection with Northern Ireland.
68 As for her “like” connections, counsel had not suggested a definition and the Deputy Bailiff was reluctant to do so, although the Department apparently interpreted the phrase by referring to the connections she has built up in the Island through her work and socially. The Department noted such connections in its letter.
69 The definition is certainly no wider than the definition of “family life” adopted by the European Court and so, in the light of the Jurats’ conclusion in respect of her art. 8 rights, s.6(2)(b)(i) need not be considered further.
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Section 6(2)(b)(ii) of the 1994 Law
70 Section 6(2)(b)(ii) requires the Department to consider “the periods during which and the circumstances in which [the appellant] has been resident in Guernsey or elsewhere.” Advocate Ferbrache criticized the Department for having treated this as a purely arithmetical exercise. It looked only at the length of her residence in Guernsey (7 years and 8 months) and compared it with the length of her period of residence elsewhere (34 years), without looking at the circumstances thereof (as required by the sub-section) and without taking into account that since leaving Northern Ireland for university she had lived nowhere for more than 3 or 4 years until coming to Guernsey. Furthermore, she had remained in Guernsey longer than she might otherwise have done because the Education Department asked her to stay on and the Department agreed that she could and extended her housing licence by 2 years.
71 The Deputy Bailiff directed the Jurats that the exercise required of the Department is more than an arithmetical calculation comparing the period of time spent in Guernsey with the period of time spent elsewhere. If the view of the Department is correct that it is a relevant circumstance that the appellant’s housing licences have always been limited in time and that the Department has never given her any reason to expect that she will be entitled to remain in Guernsey indefinitely, then the scope of this sub-section is significantly narrower than the consideration required in respect of art. 8. Consequently, in light of the Jurats’ conclusion in respect of her art. 8 rights, s.6(2)(b)(ii) need not be considered further.
Section 6(5)(e) of the 1994 Law
72 The Department also considered the application under s.6(5)(e) which requires consideration of “such other factors as it may deem necessary or expedient.” The Department referred to the appellant’s confusion over her eligibility under the “Excellent Teacher Scheme” and noted that the Education Department had not requested a further licence for the appellant under the terms of the Scheme, a fact of which it said she should have been aware. So, her application had to be considered on her personal circumstances rather than based on her employment.
73 We have already quoted what the Board said about the findings of the States of Guernsey Housing Needs Survey. The letter then added:
“After considering all the matters set out above, the Board resolved that when your familial and like connections were considered having regard to your periods and circumstances of residence, together with the other factors set out above, the grant of a housing licence to enable you to continue to occupy a controlled dwelling in Guernsey was not justified.”
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We have already set out the Jurats’ comments on the Housing Needs Survey and the Department’s apparent misunderstanding or misdirection. It follows that the Board’s findings under s.6(5)(e) are unreasonable.
Conclusion
74 The appellant had held employment-related licences for a total of 7 years and 8 months and wanted to continue in her teaching post in Guernsey, the Island where she had made her home and had established meaningful professional, social and personal relationships. In 2001, she was granted a housing licence for 5 years and 8 months and in 2006, the Education Department requested and the Housing Department granted, an extension of the licence to 7 years and 8 months on the grounds of her employment. In 2008 she believed she would be eligible for a 15-year licence under the “Excellent Teacher Scheme” and she was encouraged in that view by her head teacher. On June 13th, 2008 she was surprised to be told by an officer of the Housing Department that the Education Department would not put her name forward under the scheme; she was then advised that she could be considered for a licence on compassionate grounds.
75 When it considered her application, the Board of the Housing Department was aware that a refusal of an extension to her licence would require her to leave Guernsey. Yet it failed to treat her application with the meticulous care that the circumstances demanded; in the view of the Jurats, such lack of care was unreasonable.
76 The lack of meticulous care is evidenced in part by a failure to provide the appellant, and the court, with a proper record of the deliberations of the Board of the Department that properly explains the reasons why the members of the Board decided to reject the application and to require her to leave Guernsey; a decision that, in another case, the Court of Appeal described as a “drastic step.”
77 The Department acknowledged that it was interfering with her rights under art. 8 of the European Convention on Human Rights and it had to justify that such interference was proportionate. The Jurats have concluded that the Department is unable to demonstrate that it correctly balanced the conflicting demands.
78 The Department relied upon the findings of the Housing Needs Survey as to the net annual increase in the number of new households without taking account of the availability of newly built and converted properties.
79 In all the circumstances, the Jurats have concluded that the decision is so unreasonable that the appeal must be allowed and the decision must be set aside.
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80 The Deputy Bailiff will sit alone to hear any applications arising from the judgment but he reminds the parties that costs normally follow the event.
Appeal allowed.
2010
Law Report
None
Guernsey Law Reports 2009-10 GLR 157