England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM (i) Northampton County Court and (ii) Dartford County Court
(i)Her Honour Judge Hampton and (ii) His Honour Judge Simpkiss
(i) O65282 and (ii) ODA01692

		Royal Courts of Justice Strand, London, WC2A 2LL
		13/03/2012

The Master of the Rolls:

1. Each of these two appeals arises out of a claim for possession of a residential property, brought by a public authority against a tenant who has no domestic law defence, but who has invoked Article 8 of the European Convention on Human Rights ('Article 8'). Accordingly, these cases involve considering the guidance given by the Supreme Court in Manchester City Council v Pinnock [2010] UKSC 45, [2011] 2 AC 104 (where there was a single judgment of the court), and Hounslow London Borough Council v Powell [2011] UKSC 8, [2011] 2 AC 186 (where Lord Hope and Lord Phillips gave judgments with which the other members of the court agreed).

The facts in Corby Borough Council v Scott

2. In early December 2009, Corby Borough Council ('the Council') let a flat at 29 Ripley Walk, Corby ('29 Ripley Walk'), to Nicholle Scott, on an introductory tenancy (under sections 124-130 of the Housing Act 1996) starting on 7 December 2009 at a weekly rent of £58.22. Arrears started to mount up from May 2010, and they accumulated over the next few months. The Council served a notice of proceedings for possession on Ms Scott on 9 August 2010, when her arrears were some £287. On 26 August, her mother paid off the arrears. As a result, the Council told Ms Scott that they would extend the introductory tenancy by six months, to give her a further opportunity of showing that she was a responsible tenant.
3. However, by 6 September 2010, Ms Scott had started to fall into arrears again, and, on 25 October, by which time the arrears were some £285, the Council served another notice of proceedings for possession. Although the notice informed Ms Scott that she could seek a review of the decision to serve the notice, she did not do so. During November 2010, the Council received four complaints of noise (a party on one occasion and loud music on the other occasions) from the flat in the early hours of the morning.
4. On 9 December 2010, when the arrears were about £335, the Council issued proceedings for possession in the Northampton County Court. There were two successive directions hearings, at each of which the District Judge ordered that Ms Scott pay her current rent and £3.40 off the arrears every week. Some attempt was made to comply with these orders, but the arrears did not abate, and if anything increased, until Ms Scott's mother and grandmother paid them off by two payments, £216 in June 2011, and £280 on 1 July 2011, the last working day before the hearing of the possession claim.
5. The hearing of the possession claim lasted a day. Her Honour Judge Hampton, after hearing witnesses, including Ms Scott, gave a very full and clear ex tempore judgment. She accepted that the Council were entitled to possession as a matter of domestic law, and that she could only refuse an order for possession under Article 8 if Ms Scott could establish 'highly exceptional circumstances'. She rejected the contention that the fact that Ms Scott had 'a drink problem', the fact that she had been the victim of an assault in July 2010, or the fact that there had been 'anti-social behaviour', rendered the case 'highly exceptional'.
6. The drink problem was admitted by Ms Scott, but she said that it was being addressed following a few weeks in prison in May and June 2010. The assault referred to by the Judge was serious in the sense that it resulted in the assailant pleading guilty to attempted murder. The anti-social behaviour was, presumably the matters giving rise to the complaints in November 2010.
7. However, despite this, Judge Hampton was 'just persuaded by [Ms Scott's] particular circumstances that there are exceptional circumstances which arise here'. She explained what she meant in the following way:

'The circumstances … are exceptional because of the gravity of the assault and that is my principal reason for finding these circumstances to be exceptional. They are also exceptional because the arrears had in fact been paid. I have taken into account, although I do not regard it as an exceptional circumstance, that [Ms Scott] has had an opportunity to consider her position while in custody … [and] that she has a loving mother and grandmother who have supported her …'.

8. The Council appeals against the refusal of Judge Hampton to order possession of 29 Ripley Walk against Ms Scott.

The facts in West Kent Housing Association Ltd v Haycraft,

9. West Kent Housing Association Ltd ('the Association') is a private registered provider of social housing under section 80 of the Housing and Regeneration Act 2008. On 6 May 2009, it granted Jack Haycraft an assured shorthold tenancy (under sections 19A-21 of the Housing Act 1988) of Flat 89, Lullingstone Avenue, Swanley ('Flat 89'). The tenancy was intended to be a 'starter tenancy'. A vulnerable neighbour made an allegation of indecent exposure against Mr Haycraft on 8 May, and this was investigated by the Association and by the police. Four further allegations of nuisance, alleging noise and abuse, were made against him over the course of the next ten weeks.
10. On 19 August, the Association decided to put an end to the tenancy, and, on 1 September, it served a notice requiring possession of Flat 89, which Mr Haycraft challenged. After some meetings and discussions, the notice was effectively abandoned, and a fresh notice requiring possession of Flat 89 was served on 31 March 2010, and possession proceedings were issued in the Dartford County Court on 23 June.
11. Meanwhile, at the instigation of Mr Haycraft, the Association conducted a formal review of the decision to end his tenancy and to seek possession against him. For reasons which do not need to be gone into for present purposes, the review involved three hearings; only the third of those hearings is relevant. At that hearing, Mr Haycraft's principal point was that he was not guilty of the alleged exposure or nuisance, and, in relation to the exposure allegation, he relied on a letter from the police stating that there would be no prosecution. The panel conducting the review concluded that Mr Haycraft had been guilty of indecent exposure as alleged against him, and effectively upheld the decision to seek possession against him.
12. On 26 October 2010, Deputy District Judge Clough made an order for possession of Flat 89, and Mr Haycraft appealed. On 25 February 2011, the appeal came before His Honour Judge Simpkiss, who permitted Mr Haycraft to raise an argument based on Article 8, even though the point had not been pursued before the District Judge. He was right to do so, not least because the District Judge reached his decision before the judgment in Pinnock [2010] UKSC 45 was published.
13. Judge Simpkiss decided to dismiss Mr Haycraft's appeal against the order for possession, without hearing evidence. He was not impressed with Mr Haycraft's attempt to challenge the indecent exposure allegation, as there was nothing in his case before the Judge other than a bare denial. Nor did the Judge consider that the facts that there had been no complaints since July 2009, that Mr Haycraft had been homeless, 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.
14. Accordingly, Judge Simpkiss dismissed Mr Haycraft's appeal, although he substituted a later date for possession of Flat 89 than the District Judge, because of the passage of time since the hearing before the District Judge. Mr Haycraft now appeals to this court.

The relevant law

15. Most residential tenancies granted by local housing authorities are secure tenancies within Part IV of the Housing Act 1985, and involve the tenant enjoying a degree of security of tenure, as explained in Pinnock [2011] 2 AC 104, paras 5-7. However, no statutory security of tenure is accorded to introductory tenancies, such as the tenancy which the Council granted to Ms Scott. Introductory tenancies are explained in Powell [2011] 2 WLR 287, paras 15-19.
16. Tenancies granted by housing associations such as the Association are assured tenancies, which are governed by the 1988 Act. Unless an assured tenancy is a shorthold tenancy under section 19A or 20 of that Act, the tenant will have a degree of statutory security of tenure. There is no equivalent of an introductory tenancy under the assured tenancy regime, so, in practice, many housing associations grant so-called 'starter tenancies', such as that granted to Mr Haycraft, which in practice give both landlord and tenant very similar rights as a statutory introductory tenancy.
17. In these circumstances, where, as in these two cases, a landlord has served a valid notice of possession proceedings (under section 128 of the 1996 Act) or a valid notice requiring possession (under section 21 of the 1988 Act), the tenant will rarely, if ever, have a domestic law defence against a subsequent possession claim by the landlord. However, following a fairly consistent line of authority in the Strasbourg court, the Supreme Court in Pinnock [2011] 2 AC 104 decided that the tenant could, even then, at least in principle run an argument based on Article 8 that it would be disproportionate to evict him from his home. This principle was further considered and discussed in relation to introductory tenancies by the Supreme Court in Powell [2011] 2 AC 186.
18. The effect of the reasoning in Pinnock [2011] 2 AC 104 seems to me to be that, at least in relation to demoted and introductory tenancies, 'it will only be in "very highly exceptional cases" that it will be appropriate for the court to consider a proportionality argument', although 'exceptionality is an outcome and not a guide' – [2011] 2 AC 104, para 51, and see also paras 62 and 107, and per Lord Phillips in Powell [2011] 2 AC 186, para 92.
19. In Pinnock [2011] 2 AC 104, para 54, the court also said this:

'As Lord Bingham said in Harrow LBC v Qazi [2004] 1 AC 983, para 25:

"[T]he administration of public housing under various statutory schemes is entrusted to local housing authorities. It is not for the court to second-guess allocation decisions. The Strasbourg authorities have adopted a very pragmatic and realistic approach to the issue of justification."

Therefore, in virtually every case where a residential occupier has no contractual or statutory protection, and the local authority is entitled to possession as a matter of domestic law, there will be a very strong case for saying that making an order for possession would be proportionate. However, in some cases there may be factors which would tell the other way.'

20. It is also worth noting what the court said at [2011] 2 AC 104, para 64:

'[T]he suggestions put forward on behalf of the Equality and Human Rights Commission, that proportionality is more likely to be a relevant issue "in respect of occupants who are vulnerable as a result of mental illness, physical or learning disability, poor health or frailty", and that "the issue may also require the local authority to explain why they are not securing alternative accommodation in such cases" seem to us well made.'

21. In Powell [2011] 2 AC 186, para 33, Lord Hope referred to 'the high threshold of [it] being seriously arguable' that a tenant has an Article 8 proportionality argument. Two paragraphs later, he said that 'the threshold for raising an arguable case on proportionality [is] a high one which would succeed in only a small proportion of cases'.
22. Reflecting what was said in Pinnock [2011] 2 AC 104, paras 51-53, Lord Phillips said at [2011] 2 AC 186, para 92, that:

'[T]he judge should summarily dismiss any attempt to raise a proportionality argument unless the defendant can show that he has substantial grounds for advancing this. Two factors make it extremely unlikely that the defendant will be in a position to do this. The first is the relatively low threshold that the authority has to cross to justify terminating the introductory tenancy. The second is the significant procedural safeguards provided to the tenant' [namely, the right to ask the landlord for a review of the decision to terminate including an oral hearing].

23. Lord Phillips added in the next paragraph that 'if a tenancy has given rise to complaints by neighbours of anti-social behaviour the authority does not have to … prove that these are well founded in order to justify terminating the tenancy'. In that connection, he said that he agreed with what Waller LJ said in R(McLellan) v Bracknell Forest Borough Council [2002] QB 1129, para 97, namely:

'Under the introductory tenancy scheme it is not a requirement that the council should be satisfied that breaches of the tenancy agreement have in fact taken place. The right question under the scheme will be whether in the context of allegation and counter-allegation it was reasonable for the council to take a decision to proceed with termination of the introductory tenancy.'

Application of the principles to Corby Borough Council v Scott

24. In my view, the facts in Corby BC v Scott get nowhere near justifying the contention that it would be disproportionate for the Council to obtain possession of 29 Ripley Walk. The principal fact relied on by Judge Hampton, namely that Ms Scott had been subjected to a murderous attack in July 2010, appears to me to be simply irrelevant to the issue of Article 8 proportionality. There was no suggestion in the judgment, or even in the evidence, that the attack resulted in mental or physical injury which would render it particularly harmful to Ms Scott to be evicted. There was a suggestion in her evidence that the attack may have dissuaded her from leaving 29 Ripley Walk, but that did not appear very convincing, did not explain the rent arrears, and was not relied on by the Judge. And I doubt it would have taken matters much further anyway. The attack, although no doubt a shocking experience, simply had nothing to do with the claim for possession, or the respect to which Ms Scott is entitled under Article 8 for her home.
25. The only other fact relied on by the Judge was that the rent arrears were cleared the day before the hearing. I do not think that that is an impressive point at all. I suppose that it is just about conceivable that it might provide a little support for a proportionality argument, based on other, much stronger points. However, I find it difficult to think of circumstances where the fact that the tenant, let alone the tenant's relations, paid off the rent arrears at the last minute could carry significant weight in the Article 8 proportionality argument. In the absence of extraordinary facts, it seems to me fanciful to suggest that a residential occupier should be able to pray in aid the fact that she has paid the landlord money which she owed him, as a significant factor, which enables her to cross the high threshold identified in the two Supreme Court cases, when invoking Article 8.
26. In my view, the case advanced on behalf of Ms Scott as to why it would be disproportionate to require her to give up possession of 29 Ripley Walk was one which should not have gone to trial, subject to what I say in the next but one section of this judgment. At a preliminary stage, a Judge should have held that, assuming that her pleaded case was factually correct, it could not succeed, as it was hopeless as a matter of law.
27. The Judge may have been misled by concentrating too much on the question whether the facts of the case were exceptional. As explained in Pinnock [2011] 2 AC 104, exceptionality is a measure of outcome. Nonetheless, it is a useful cross-check for a judge after reaching a preliminary decision in a particular case that Article 8 can be invoked. Another problem with using exceptionality as the test is that, as Ms Scott's case suggests, it may distract a judge from the question of relevance. It can fairly be said that it is highly exceptional to have been subjected to a murderous attack, but, at least without more, it has nothing to do with the question Judge Hampton was called on to consider.

Application of the principles to West Kent Housing Association Ltd v Haycraft

28. Turning to West Kent HA v Haycraft, I would dismiss Mr Haycraft's appeal against the decision of Judge Simpkiss to uphold the order for possession against Mr Haycraft made by the District Judge. 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.
29. It is true that, with the exception of the unsubstantiated quartet of complaints of nuisance during the summer of 2009, there were no further complaints about Mr Haycraft's behaviour, and that that can be said to be a mitigating factor. However, it is no more than that. It is true that he is not in good health, but there was no good evidence that his kidney and liver problem would be exacerbated by his eviction. It is true that he had got a family by the time that the claim came to court, but his wife and children would, it is common ground, have to be re-housed under the homelessness provisions in Part VII of the 1996 Act.
30. It is also true that there is a risk that he would be treated as intentionally homeless and therefore not entitled to re-housing in his own right. However, on the facts of this case, he may well have to be re-housed with his wife and child anyway. Further, and more generally, this 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.
31. Even taking these factors together, I consider that Judge Simpkiss was, to put it at its lowest, entitled to conclude that Mr Haycraft had not established a strong enough case on his pleaded case to justify a hearing on the issue of whether it would be proportionate to order him to give up possession of Flat 89.
32. This was a starter tenancy, which, as both Mr Haycraft and the Association accept, was, in practice if not in terms of strict legal analysis, the same as an introductory tenancy. (i) In each case, the purpose of the tenancy is to see whether the tenant would be an appropriate person to enjoy security of tenure in publicly available housing; (ii) in neither case is there statutory security of tenure, save that the landlord has to serve a notice and seek possession from the County Court; and (iii) in practice under a starter tenancy, and under statute under an introductory tenancy, the landlord has to have good reason before deciding to seek possession, and the tenant has a right to seek a review of that reason and decision.
33. Accordingly, the reasoning and approach in the two Supreme Court cases is very much in point. West Kent HA v Haycraft is a case which is much closer to raising an arguable Article 8 issue sufficient to go to trial than Corby BC v Scott,. Nonetheless, in my view, bearing in mind the observations in the Supreme Court quoted in paras 18-23 above, Judge Simpkiss was fully entitled to conclude that Mr Haycraft had not raised a sufficiently strong Article 8 proportionality argument on the face of his written case to justify a full hearing on the issue.

The substantive and procedural implications of these two cases

34. In terms of the wider lessons to be learnt from these two cases, there is a limited amount that can be said so far as substantive issues are concerned. It is inevitable that, when a tenant against whom possession is sought raises an Article 8 argument, the prospects of the argument succeeding are very much dependent on the facts of the particular case. Accordingly, any one decision can be only of very limited assistance in terms of giving any sort of general guidance.
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.
36. So far as procedural issues are concerned, I refer again to what Lord Phillips said in Powell [2011] 2 AC 186, para 92, quoted in para 22 above. In Corby BC v Scott, there appears to have been no initial judicial consideration as to whether Ms Scott had raised a sufficiently strong Article 8 proportionality argument to go to a hearing. Further, we were told that there was no consistency of approach in different County Courts as to how to proceed when a tenant raises an Article 8 proportionality point in possession proceedings. In some courts, the case is automatically listed for a hearing on the merits of the point; in other courts, the case remains in the usual housing possession list, and is then (depending on the court) (i) adjourned for fuller consideration, (ii) automatically re-listed for a hearing, or (iii) briefly considered and then either rejected or adjourned as under (i) or re-listed as under (ii).
37. Although we were asked to do so, it does not appear to me to be appropriate for us to give firm guidance on the procedure to be adopted in possession cases where the tenant raises Article 8. We simply do not have the information available to give such guidance. Different courts may have good reasons for adopting slightly different practices; one procedure may be possible and practical on one day (e.g. when the judge concerned has a very light list) but not on another (when the judge is over-listed); the particular facts of a case, or type of case, may justify a particular procedure which would be inappropriate for another case, or type of case.
38. Lord Hope and Lord Phillips said much the same thing in Powell [2011] 2 AC 186, paras 47 and 101 respectively. Lord Hope suggested that, if the court gave guidance 'there is a risk that such guidance … will create more problems than it will solve'. Lord Phillips said that, rather than the court 'attempt[ing] to give directions or guidance in relation to the appropriate procedures', such matters were 'much better formulated in the form of rules of court, practice directions or protocols by those who are normally responsible for producing these'.
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. Apart from that, questions of procedure in this area should perhaps be considered by the Civil Procedure Rules Committee, and, meanwhile, Designated Civil Judges may think it worth considering such procedures in the courts for which they have responsibility.

Conclusion

40. As it is, I would allow the Council's appeal in Corby BC v Scott, and dismiss Mr Haycraft's appeal in West Kent HA v Haycraft.

Lord Justice Richards:

41. I agree.

Lord Justice Davis:

42. I also agree.