A closed door – Article 8 defences in mandatory possession cases

The Supreme Court in Manchester City Council v Pinnock [2010] UKSC 45; [2011] 2 AC 104 and The Mayor & Burgesses of the London Borough of Hounslow v Powell [2011] UKSC 8; [2011] 2 WLR 287 severely restricted the likelihood of an occupier facing (mandatory) possession of their home successfully defending such a claim in reliance upon Article 8 of the Convention Rights – the right to respect for private and family life. Lord Neuberger MR further closed the door whilst sitting in the Court of Appeal in Corby Borough Council v Scott; West Kent Housing Association v Haycraft [2012] EWCA Civ 276; [2012] HLR 23, when he confirmed:

“35. Nonetheless, I consider that Corby BC v Scott emphasises that, in such a case, a judge (i) should be rigorous in ensuring that only relevant matters are taken into account on the proportionality issue, and (ii) should not let understandable sympathy for a particular tenant have the effect of lowering the threshold identified by Lord Hope in Powell [2011] 2 AC 186, paras 33 and 35. As for West Kent HA v Haycraft, it seems to me to emphasise the significance of the height of that threshold, or, to put it another way, how exceptional the facts relied on by any residential occupier must be, before an Article 8 case can have a real prospect of success.”

Successful defences are therefore unlikely – albeit their dismissal will often come at some considerable financial cost to the private registered provider (PRP) or local housing authority (LHA) – and the three issues that arise out of such an inevitable analysis are:

1. Article 8 will continue to be pleaded and should in most instances be met by the landlord with an application for strike out and/or summary disposal if not concluded at the first hearing. As Lord Neuberger said in Haycraft “35…The only specific point I would make is to emphasise the desirability of a judge considering at an early stage (normally on the basis of the tenant’s pleaded case on the issue) whether the tenant has an arguable case on Article 8 proportionality, before the issue is ordered to be heard. If it is a case which cannot succeed, then it should not be allowed to take up further court time and expense to the parties, and should not be allowed to delay the landlord’s right to possession.”
2. .There are an increasing number of cases where the possession order itself is not challenged on Convention Rights grounds or at all but the decision to enforce such an order is, whether by an (N244) application to stay execution of the warrant for possession or judicial review proceedings. The July 2012 judgment in R(on the application of JL) v Secretary of State for Defence & Leeds City Council (Interested Party) [2012] EWHC 2216 (Admin) is an example of the latter approach and Ingrid Simler QC, sitting as a Deputy High Court Judge, said in that case:

“61. In my judgment, again by extension of the Supreme Court’s reasoning in Pinnock, a proportionality review can be considered at the enforcement stage in an appropriate
case, but not in every case. Where the question of proportionality has been raised and addressed at the possession stage, or where it could have been raised and addressed, it will be difficult for the tenant successfully to invoke it absent a marked change in circumstances or some other exceptional reason justifying its consideration. In the
vast majority of cases where enforcement takes place (without any need for the service of a notice that a warrant has been applied for or issued) within days or weeks
of the possession order, it is unlikely that such a justification will be capable of being established.”

Again, this ultimately should not present too much of a hurdle for a landlord to overcome in the majority of cases but it is as well to be aware that such an argument may be raised at the enforcement stage. I was involved in a recent case of this sort at Woolwich County Court where an outright order had been made against a tenant because of the drug dealing activity of her 17-year old son and when he was convicted of an offence, which led to a 12-month custodial sentence, her solicitors argued that not only should this enable the court to suspend the order on a “normal” basis but that Article 8 was engaged and eviction was in all the circumstances not proportionate. The application was ultimately dismissed but the deputy district judge hearing the application wondered whether Article 8 was engaged given the trial judge’s specific consideration of proportionality. Suffice to say that the landlord conceded that it remained engaged, albeit its impact on his ultimate decision was limited because (a) his general discretion under section 85(2) of the Housing Act 1985 afforded greater scope than a proportionality argument ever could (b) there was no evidence that the son would not return to the flat after his sentence, his exclusion having nothing to do with the tenant or her efforts.
3.The more likely challenge to cause problems for a PRP or LHA in a mandatory claim is the “old style” gateway B – in other words a public law challenge. This has been seen in the context of the failure to follow policy (see for example Eastland Homes Partnership Ltd v Whyte [2010] EWHC 695 (QB) and Barber v Croydon LBC [2010] EWCA Civ 51) and demonstrates that such landlords would be well advised to ensure their policies are fair and appropriate (and followed), and that their decision-making is identifiable and justifiable.

Andrew was instructed by Batchelors Solicitors to act for West Kent Housing Association in the Haycraft matter referred to in the article.