Andy Lane represented West Kent Housing Association in the recent Court of Appeal case of Corby Borough Council v Nicholle Scott; West Kent Housing Association Ltd v Jack Haycraft. Mr Haycraft was 21 years of age when he entered into his starter tenancy of a flat in Swanley with West Kent on the 6 May 2009. Following complaints as to his behaviour, including one of indecent exposure towards a vulnerable neighbour, on the 19 August 2009 his tenancy was “failed” and a notice requiring possession served the following month. Mr Haycraft, who denied the allegations, took advantage of West Kent’s internal review procedure but ultimately, on the 20 January 2010, the panel hearing his case decided to confirm the decision taken the previous August.
A fresh notice requiring possession was served on the 31 March 2010 and accelerated possession proceedings issued on the 23 June 2010. Mr Haycraft appealed against a possession order made at first instance on the ground that the proportionality of his eviction had not been considered (which was true as the hearing pre-dated the Pinnock judgment referred to later) and that it would be a disproportionate interference with his rights set down in Article 8 of the European Convention on Human Rights for an order to be made and eviction secured. Article 8 provides:
- “Everyone has the right to respect for his private and family life, his home and his correspondence.
- 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.”
It is now settled law that the question for any court faced with such a defence will always be whether the making of an order for possession in the particular case would be lawful and proportionate. On the 25 February 2011 HHJ Simpkiss dismissed the appeal, without hearing evidence. He was not impressed with Mr Haycraft’s attempt to challenge the indecent exposure or other allegations, as it consisted of simply a bare denial. Nor did the Judge consider that the facts that there had seemingly been no complaints since July 2009, that Mr Haycraft had been previously homeless before his tenancy with West Kent, that he had liver and kidney problems, or that he had got married and now had a child, justified a full hearing of the possession claim, let alone allowing Mr Haycraft’s appeal.
Mr Haycraft appealed further and in a judgment handed down on the 13 March 2012 his appeal was dismissed by the Court of Appeal (and that of Corby Borough Council allowed). Both the West Kent and joined appeal involving Corby Borough Council concerned the proper interpretation and effect of the Supreme Court decision in Manchester City Council v Pinnock  UKSC 45. This authority held that any person at risk of losing their home in possession proceedings “should in principle have the right to raise the question of the proportionality of the measure, and to have it determined by an independent tribunal in the light of art 8”. Lord Neuberger delivered the main judgment in Pinnock (and again in West Kent) and set out a number of different principles or guides to consider in such cases, including:
- It will only be in exceptional cases that Article 8 proportionality would even arguably give a right to continued possession where the applicant has no right under domestic law to remain (paragraph 45).
- Proportionality will be assumed and does not ordinarily have to be pleaded in the particulars of claim, it only having to be dealt with if raised by the occupier (61).
- The court should initially consider such a defence summarily, and if, as will no doubt often be the case, the court is satisfied that, even if the facts relied on are made out, the point would not succeed, it should be dismissed. Only if the court is satisfied that it could affect the order that the court might make should the point be further entertained (61).
- The fact of ownership, compliance with the domestic process and the right to manage one’s stock are always good indicators of proportionality (52-4).
- The court, in considering an “Article 8 Defence”, has the ability to “resolve any relevant dispute of fact” and form its own view in its consideration of the proportionality issue, but that is so only in the “appropriate case” (49; 74)
Mr Haycraft’s central complaint in his appeal was that he should have been given “an opportunity for the proportionality of a possession order to be considered in the light of his personal circumstances and the history of the tenancy”. In other words, the matter should have not been dealt with summarily but rather should have been remitted with directions for trial and the testing of the allegations against him.
Lessons to be learnt
This case has highlighted a number of important issues for those dealing with Article 8 Defences to consider:
1. Good decision making: internal decision-making (including any review/appeal panel determinations) should be fair, well-documented and clear. The Court in this instance was able to comment:
“28. …The indecent exposure allegation, on which the Association’s decision to seek possession was essentially based, was properly investigated by the reviewing panel, who concluded that it had occurred. That conclusion was clearly articulated and well reasoned, and it was arrived at after a hearing. As the Judge said, Mr Haycraft had not come up with any new points which called the finding into question, or any challenge to the procedure or reasoning involved in the review.”
2. Relevance: it is not enough to demonstrate exceptionality in any circumstances. They must relate to the question before the court. And so it may well have been exceptional for Ms Scott to have been the subject of a “murderous attack” but this had no connection with, and was thus irrelevant, to the question the Judge had to consider (paragraph 27).
3. Impact of eviction: the Court acknowledged that both tenants had their own health issues but found that in the absence of any evidence as to the impact of an eviction on them this was of little relevance (24; 29).
4. Homelessness: and the reminder that Article 8 does not entail a right to a home. Lord Neuberger said at paragraph 30:
“30…Further, and more generally, this [the possible finding of intentionality] is, in my view, not a significant factor so far as the Article 8 proportionality argument is concerned. First, Article 8 is primarily concerned with respect for his particular home, as opposed to a general right to be provided with a home. Secondly, the right to be re-housed appears to me to be a factor weighing against the Article 8 claim prevailing, rather than the absence of such a right being a factor in favour of such a claim prevailing.”
5. Existing commitments: the fact that Ms Scott had been able to clear arrears (the reason why her landlord had sought to bring her introductory tenancy to an end) was hardly an impressive feature of her case given that she owed the money to her landlord and was contractually obliged to pay it anyway (2).
6. Context: it was crucial to note the context of the rights of occupation and fact that these tenancies were probationary in nature (32). Mr Justice Ryder in a High Court case reported earlier this year – The Riverside Group Ltd v Sharon Thomas  EWHC 169 (QB) – confirmed the sense of such an approach when he said:
“49. Accordingly the relatively low threshold for termination of the starter tenancy taken together with the procedural safeguards set out above ensure that in this case the decision to seek possession is one which is plainly justified. Indeed the Defendant does not now contend otherwise. “
This decision will give considerable comfort to those landlords dealing with probationary tenancies. There had been a tendency for county courts to simply list possession claims involving an Article 8 defence for a one day or more trial with the intention of deciding issues of fact. The effect was that to some degree the distinction between the landlords’ right to possession in mandatory cases, such as here with starter and introductory tenancies, and the requirement to prove grounds and reasonableness in discretionary claims faced by secure and assured tenants was becoming increasingly blurred and negating the purpose and impact of such probationary schemes.
The Court declined to give further guidance as to the county court’s approach to Article 8 defences save that Lord Neuberger did remark as follows:
“39. 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. I accept, however, that it may well be that even that cannot be an absolute rule. …”
Andy Lane was instructed by Daniel Skinner, Head of Housing at the leading solicitors firm Batchelors and this article is adapted from one co-authored by them in the week following judgment.