Bradney, Birmingham City Council v Birmingham City Council, McCann: CA 9 Dec 2003

Birmingham Council had granted H and W a joint secure tenancy of a three-bedroom home. The marriage broke down and W left with the two children. She obtained a non-molestation order and an ouster order against him. H tried to force his way into the home. W applied to the council, and it provided her with alternative accommodation. H returned to the house and then applied to the council for a mutual exchange with another tenant because the house was larger than he required. An officer persuaded W to surrender the tenancy, but did not advise her that this would leave H homeless. The council obtained an order for possession.
Held: H argued that in seeking to obtain from the wife the notice to quit the council had circumvented the statutory powers in relation to recovery of possession of a secure tenancy. Article 8 was not available as a defence even though the property was H’s ‘home’ under the Convention.
The council had acted within its powers and the notice to quit at common law terminated the secure tenancy. Section 82 did not apply. The notice had effect though W signed without appreciating the consequences for H. This was not a ‘wholly exceptional’ case where, for example, something had happened since the service of the notice to quit which had fundamentally altered the rights and wrongs of the proposed eviction, and the council might be required to justify its claim to override the Article 8 right.


Lord Justice Mummery Lord Justice Tuckey Lord Phillips Of Worth Matravers, Mr


[2003] EWCA Civ 1783, [2004] HLR 27




Housing Act 1985


England and Wales


AppliedHammersmith and Fulham London Borough Council v Monk HL 5-Dec-1991
One tenant of two joint tenants of a house left and was granted a new tenancy on condition that the existing one of the house, still occupied by her former partner, was determined. She gave a notice to quit as requested, the council claimed . .

Cited by:

Appeal fromMcCann v The United Kingdom ECHR 13-May-2008
The applicant and his wife were secure joint tenants of a house of a local authority under section 82. Their marriage broke down, and the applicant’s wife moved out of the house with the two children of the marriage. She returned after obtaining a . .
CitedCoombes, Regina (on The Application of) v Secretary of State for Communities and Local Government and Another Admn 8-Mar-2010
The landlord council brought proceedings for possession. The tenant (C) had remained in possession after his mother’s death, but enjoyed no second statutory succession. He had lived there since 1954 when he was six. C sought a declaration of . .
Lists of cited by and citing cases may be incomplete.

Housing, Human Rights

Updated: 08 June 2022; Ref: scu.188690