Andrew Lane wins in the High Court

16 Jul 2010

Andrew Lane recently acted for the Respondent (Poplar HARCA) instructed by Batchelors Solicitors, in Poplar Housing and Regeneration Community Housing Association Limited (Poplar Harca) v Stephen Howe [2010] EWHC 1745 (QB). This was an attempted challenge by a former tenant to a possession order made at Bow County Court.  His wife and joint tenant had left the family home in 2005 and gave a notice to quit the following year at the behest of the local authority who were assisting her re-housing.  Poplar agreed a management transfer for Mr Howe and offered him four alternative properties.  None of these were accepted by him and after the third one possession proceedings were brought.

He challenged the possession claim primarily on gateway (a) and (b) grounds, and in particular averred that in respect of the fourth offer of alternative accommodation Poplar should have paid for his removal costs under the cash incentive scheme available to down-sizing tenants (they had agreed to waive arrears of rent).  The Recorder rejected these defences finding herself bound by Harrow LBC-v-Qazi (2004) 1 AC 983  in respect of the gateway (a) defence and being of the view that Poplar had in all the circumstances acted reasonably and proportionately, it having no legal obligation or responsibility to offer accommodation to their former tenant.  Mr Howe sought permission to appeal and the matter came before Rafferty J on the 23rd June 2010.

The line taken in respect of gateway (a) by Mr Howe’s advisers was that European jurisprudence was developing so that the time was ripe to look again at Qazi and its compatibility with Article 8 of the Convention.  As for the gateway (b) defence, this was refined and altered to claim that Poplar had failed to accord Mr Howe his review rights in respect of the fourth offer of alternative accommodation and that the offer of the fourth accommodation could not be suitable if he could not afford to move there.

Poplar’s approach to these two lines of attack was that not only was Qazi binding on the court and the purported development of European jurisprudence insufficient to justify a review of Qazi but also the Recorder had made an unchallenged finding that Poplar had not encouraged Mrs Howe to sign her notice to quit.  As for the gateway (b) ground, there were factual difficulties for the Appellant on these matters and in any event his approach would mean that no property could be suitable unless Poplar paid removal expenses.  Such a conclusion would itself be perverse.

Mrs Justice Rafferty concluded on gateway (a), upon upholding the rules as to precedent:

“24…The issue as I have rehearsed is stark – Qazi defeats an incompatibility challenge…Qazi remains good law.”

As for the gateway (b) attack she was of the view:

“33. I can find nothing in her judgment to persuade me that the Recorder fell into error in her approach to or decisions on any aspect of this case.  I have dealt earlier in this judgment with her conclusions on incompatibility and precedent, unimpugnable and on current law inevitable.  As to the public law arguments her findings are also for the reasons she gave and which I adopt not amenable to challenge.  She was certain to find that the Respondent’s acting as generously as it did towards the Appellant could never translate into a public law challenge for the reasons she gave and with which I also agree.  It would be a remarkable result were the Appellant, not a tenant, in reliance upon his straitened finances entitled unilaterally to select the property he would be prepared to accept.”

Unlike in Lana Wilson-v-LB of Harrow [2010] EWHC 1574 (QB), where permission to appeal was given in a Qazi gateway (a) challenge (and the appeal then refused – there is talk of this going to the Court of Appeal for permission), Rafferty J refused to granted permission here and dismissed the application with costs.