England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		25/05/2012

Mr Justice Tugendhat :

1. The Defendant ("Ms O'Connell"), applies for permission to appeal against the order of HH J Knowles ("the Judge") made on 7 December 2011 at the Wandsworth County Court. It was an order that Ms O'Connell give Viridian Housing possession of premises at Cornford Grove, Balham, on or before 4 January 2012. In addition it was ordered that Ms O'Connell pay Viridian Housing £4590.89 for rent and costs of £100, making a total of £4690.89.
2. By order dated 10 January 2012 Edwards-Stuart J ordered that the application for permission to appeal be heard orally, with the hearing of the appeal (subject to permission) to follow. He directed that Viridian Housing should prepare for the hearing of the appeal, notwithstanding permission had not been granted. In addition he ordered that Ms O'Connell serve on Viridian Housing a witness statement (or statements) in support of her application and the appeal, and any proposed amendments to the Grounds of Appeal for which she would seek permission at the hearing. He granted a stay of the order of 7 December 2011 pending determination of the application for permission to appeal.
3. The tenancy agreement had been made in February 2000. The premises are a "supported housing project". The commencement of the tenancy was stated to be 27 July 1998.
4. The notice seeking possession was dated 25 August 2011. The grounds relied on were those set out in the Housing Act 1988 (as amended) Schedule 2 ground 8, 10, 11 and 12. Under grounds 8, 10 and 11 it is stated that as of 24 August 2011 the rent arrears were £1,339.25. Under ground 12 it was stated that the defendant no longer lived in the property as her only or principal residence. It was stated that the court proceedings would not begin until after 25 September 2011.
5. On 14 October 2011 the Claim Form and Particulars of Claim were served. In the Claim Form it is stated:

"7… the Defendant's date of birth is 29 May 1996. She is partially sighted and suffers from depression. The Defendant's mother died in around 2005 and the Defendant inherited a property at … London SW11. The Defendant was given a three year grace period by Housing Benefit to move into that property which she has failed to do. As a result, her Housing Benefit claim was stopped on 3 June 2011.

8. The Claimant is asking the court to take the following financial or other information into account when making its decision whether or not to grant an order for possession: the Claimant is a charity and requires rental income to further its objectives to provide social housing".

6. The evidence in support of the claim is in the form of a witness statement by Ms Valentine, a housing officer employed by Viridian Housing. At the hearing on 7 December 2011 the Defendant did not dispute anything in the Particulars of Claim, or in this witness statement. Ms Valentine set out her reasons for stating that the Defendant does not live in the property as her only principal residence. Since that ground is not pursued it is not necessary to set out that evidence.
7. It is, however, relevant that there had been two previous sets of proceedings brought by Viridian Housing against the Defendant. In her witness statement Ms Valentine states that in the second of these proceedings, brought in 2010, HHJ Knowles had issued an injunction on 21 July 2011 ordering the Defendant to permit Viridian Housing to enter the property for the purpose of inspection of gas installations and any work of repair or maintenance. HHJ Knowles had also ordered the Defendant to pay Viridian Housing's costs, which had been summarily assessed in the sum of £795 which was added to the rent account. (Ms O'Connell's inability or unwillingness to give access to the premises was one of the matters relied on as showing she did not live there).
8. The earlier proceedings had been a claim for possession commenced in 2007. Ms Valentine exhibited to her statement a judgment given by Mr Recorder Clover dated 22 May 2008. As that judgment shows, the Defendant's case in 2008 was that she was a disabled person and that Viridian Housing (which was known by a different name at that time) was unlawfully discriminating against her by taking steps to enforce its statutory right to a possession order, also under the mandatory ground 8, for admitted non payment of rent. Ms O'Connell contended that the arrears were "related to" her disability, with the result that she had a defence under the Disability Discrimination Act 1995.
9. That case had a long procedural history, in the course of which it came before HHJ Knowles on two occasions. The first was on 15 December 2007, and the second was on 7 April 2008. On each occasion HHJ Knowles ordered an adjournment. According to the Recorder's judgment, on each occasion HHJ Knowles had heard Ms O'Connell in person as well as her legal representative. Para 16 of the Recorder's judgment reads as follows:

"I am satisfied that Ms O'Connell has, in relation to her impaired sight a physical impairment; and I am also satisfied that as a result of her mental problems, the evidence about which I have summarised, she also has a mental impairment. The combination of both her seriously impaired eyesight, and her impaired ability to organise her thoughts, plan a course of action and carry it out, affects her ability to carry out normal day to day activities. Her impairments are of long term effects. I am satisfied that as a result there is a substantial and long term adverse effect on Ms O'Connell's ability to carry out normal day to day activities. I find she is 'a person who has a disability for the purposes of the 1995 Act".

10. In para 26 of his judgment the Recorder said:

"I am satisfied that in this case Ms O'Connell's rent arrears … were and are not related to Ms O'Connell's disability. I find as fact that there was no causal link between her rent arrears and her disability, and I further find that there was no relationship between her arrears and her disability which could probably lead to the conclusion that [Viridian Housing] 'discriminated' against her for the purposes of the 1995 Act. On the contrary, they have treated her generously. Her rent arrears developed because her Housing Benefit stopped. The decision to stop paying her Housing Benefit was taken by the Department when and because they found out that she owned a house. It is true, that she was at that time, as she had been for many years, suffering from physical and mental impairments which together constituted a disability for the purposes of the 1995 Act. But there was neither a causal link nor a relationship between her arrears and her disability".

11. A possession order was duly made, but Ms O'Connell applied to set it aside. On 10 November 2008 the matter came before Hedley J. He suspended the warrant. On 14 January 2009 by a consent order the possession order dated 22 May 2008 was set aside and Viridian Housing withdrew its application for a warrant for possession.
12. According to the evidence of Ms Valentine, which has remained uncontradicted until very shortly before the present hearing, the consent order was to enable Ms O'Connell either to move into the property which she had inherited or, to sell it. But, as is not in dispute, she has done neither of those things.
13. On 7 December 2011 the case was called on at 11.09. Ms O'Connell was represented by the duty solicitor. Almost immediately HHJ Knowles stated that she recollected the case. Ms Valentine gave evidence. But it soon appeared that Ms O'Connell did not have any papers with her and the duty solicitor had therefore not seen them. The judge remarked that it was "a busy list", adjourned the matter and said she would resume the hearing when the parties were ready.
14. HHJ Knowles in fact resumed the hearing at 5pm. At that point counsel for Viridian Housing drew to the Judge's attention that "if an issue as to disability discrimination is to be raised" Mr Recorder Clover had made findings in his judgment. The Judge then adjourned briefly to read that judgment. Ms Valentine was again sworn and gave evidence. The duty solicitor asked two questions on behalf of Ms O'Connell. In her speech the duty solicitor said that Ms O'Connell had a different understanding of what had happened between her and the Housing Benefit Department from that of Viridian Housing, and she referred to two letters from the Department. In one of these, dated 2 December 2011, Ms O'Connell had been told that any payment in respect of Housing Benefit would be made, but in another, dated 5 December, she was told that it would not be paid. The solicitor stated that:

"there are issues in this case which relate to public law and Article 8 issues which I do not feel able to present myself which is why I asked for an adjournment".

Having read the letters the Judge asked for a copy of the consent order, but it was not available.

15. In giving judgment the Judge referred to the proceedings brought in 2008. She said:

"3. It seems (and I have to deliberately stress the word 'seems') that Ms O'Connell was allowed to continue to occupy the property by virtue of some consent order entered into in February 2009. The difficulty from my point of view is that I have not had sight of that consent order and I do not know, therefore, with any degree of clarity the terms upon which the order would have been set aside. Nonetheless, it now appears that Ms O'Connell is in substantial rent arrears again and in circumstances in which the claim for possession has now been issued on the basis of grounds 8, 10 and 11 of Schedule 2…

4. On the face of it, I have seen a copy of the up to date rent account. There can be no doubt that ground 8 is made out. Both as at the date of notice seeking possession and as of today's date there are at least eight weeks arrears of rent. …

7. It is now urged upon me on behalf of Ms O'Connell that there are human rights issues at play in this case. I have no doubt that Ms O'Connell will wish to rely again on her disability and the same matters that were raised before Mr Recorder Clover during the course of the hearing in front of him. That is a matter that was dealt with by Mr Recorder Clover in I repeat what is an extremely full judgment which was handed down, as I understand it, in relation to the earlier proceedings. Part of that judgment reads as follows: [and she quotes para 26].

8. So it is that I have come to the same conclusion. This is a case in which the landlords have extended latitude for a long period of time in circumstances which it appears that the consent order to set aside was based on a period of grace to allow Ms O'Connell either to enable that other property to be adapted for her own use or to sell the property. She has done neither it seems, and in circumstances in which she is now appealing to the court to say that there should be an adjournment to still allow housing benefit to be sorted out. I am clear in my own mind that there are no such Human Rights Act issues at play here. This is a defendant who has had an abundance of latitude shown to her already. There are no exceptional circumstances such as to justify a further adjournment.

9. Under those circumstances, I say that ground 8 is made out. It is a mandatory ground and I am going to make an outright order for possession".

16. In the course of her judgment the Judge had referred to and quoted from North British Housing Association v. Matthews [2004] EWCA Civ 173 and she plainly understood that she could have adjourned the proceedings had she thought it right to do so. In para [32] of his judgment Dyson LJ said:

"We hold that the power to adjourn a hearing date for the purpose of enabling a tenant to reduce the arrears to below the ground 8 threshold may only be exercised in exceptional circumstances. Cases such as those to which we have referred in para 31 above might fall into this category. But the fact that the arrears are attributable to maladministration on the part of the housing benefit authority is not an exceptional circumstance. It is a sad feature of contemporary life that housing benefit problems are widespread. To a substantial extent, these are no doubt the product of lack of resources. But we do not consider that the non-receipt of housing benefit can, of itself, amount to exceptional circumstances which would justify the exercise of the power to adjourn so as to enable the tenant to defeat the claim."

17. There are a number of similar references to the low threshold that a landlord such as Viridian Housing has to pass, and how exceptional the facts must be before a residential occupier can rely on Art 8 with a real prospect of success: see Corby v West Kent Housing Association [2012] EWCA Civ 276 para [35].
18. The first ground of appeal is that the Judge was wrong not to adjourn the proceedings. It is argued on her behalf that Ms O'Connell is a disabled person for the purposes of the Equality Act 2010, and that her disability is one which compromised to a very substantial extent her capacity to manage her legal and financial affairs and that she is a vulnerable person. She was not able to secure legal representation sufficiently in advance of the hearing for an informed assessment to have been made of such defences as she may have had to the claim, whether arising from the principles of public law, the Human Rights Act 1998 or the Equality Act 2010. It was disproportionate for the Judge not to adjourn to afford Ms O'Connell an opportunity of securing informed legal representation and seeking expert evidence as to the current nature and effect of her disability and thereafter to file and serve a defence if so advised. It is argued that the Judge offered no reasoned basis for the conclusion that it was not seriously arguable that the circumstances of Ms O'Connell satisfied the exceptionality test in Matthews. The test of disability under the Equality Act 2010 is different from that under the Disability Discrimination Act 1995.
19. The second ground of appeal is that there was a serious procedural or other irregularity in that the Claimant did not alert the Judge to the decision of Hedley J. Further the Judge misunderstood the consent order in that it was not subject to any conditions and so Ms O'Connell was not in breach of any conditions.
20. As already noted, Ms O'Connell gave no evidence and did not adduce any evidence of disability at the hearing before the Judge.
21. In her witness statement made on 26 March 2012 pursuant to the order of Edwards Stuart J (which covers some 15 pages) Ms O'Connell recites difficulties and accidents that she has suffered in life and explains the position of the house she owns as follows:

"29. Following the death of my mother I am advised that I became the sole owner of the property by survivorship. In any event my mother left a will leaving everything to me. The property is derelict but I believe it to be worth six figures even in its present condition.

30. My depression leaves me with feelings of hopelessness and feelings of lack of point about everything. This leads to a lack of motivation and I struggle to do basic tasks over and above receiving my benefit and obtaining food.

31. I have a problem following matters through. For instance, I have been taking steps for the last two to three months to getting a bank account and so far I have only been to the bank and got details of what they require despite being constantly nagged by my solicitor. I am unable to bring myself to do things which my brain tells me is the right thing to do but my heart does not.

32. Dr Potter stated my 'main ongoing difficulties include depressive ideation, intermittent ideas of self harm, lack of motivation and difficulty carrying out basic activities of daily living. Her self care is poor and her flat is in some state of disrepair'.

33. He also stated: 'She had difficulties in carrying out basic tasks of daily living, for example, self care, tidying of the flat, paying bills. She is consistently presented with difficulties of motivation and organisation. Her difficulties have been compounded by her visual impairment and social isolation."

22. The Equality Act 2010 Section 15 provides:

"(1) A person (A) discriminates against a disabled person (B) if—

(a) A treats B unfavourably because of something arising in consequence of B's disability, and

(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability".

23. For Ms O'Connell it is submitted that her rent arrears arose in consequence of her disability (a reference to Section 15(1)(a)) and that Viridian Housing is therefore discriminating against Ms O'Connell because of her disability. In a draft of a defence that would be put forward if the appeal succeeds this is the first defence that is raised. It is further said that Viridian Housing would be put to strict proof that such discrimination is proportionate.
24. Other defences set out in the draft grounds of defence are that the issue and continuation of possession proceedings is unlawful because Viridian Housing is in breach of the Equality Act 2010 s.19 in relation to the management of the rent arrears. It is also pleaded that there is a breach of s.20 on the same basis. As to the Human Rights Act 1998, it is argued that there is a defence under Article 8 because ground 8 precludes any judicial assessment of the proportionality of the grant of a possession order. It is also set out in the draft defence that the different protection available to public authority tenants in respect of assured tenants and secure tenants amounts to discrimination which is contrary to Article 14. Apparently it is said that the decision of Viridian Housing to issue the notice and seek possession of the property in the present proceedings, and to continue with those proceedings, is disproportionate.
25. For Viridian Housing it is submitted that although Ms O'Connell has been given an opportunity to file a witness statement, she has not taken that opportunity either to explain why at the time of the hearing in December 2011 she had not instructed a solicitor (as she now has), nor any evidence of her being then under a disability, nor any evidence that she is under a disability at the time of the hearing of this application. Rather, it is submitted, her witness statement of March 2012 illustrates a considerable ability to deal with solicitors and the benefits system.
26. Further it is submitted, by reference to the 1988 Housing Act and the CPR Part 55, that Ms O'Connell had had ample notice of the hearing. Seven and a half weeks elapsed between the issue of the claim form on 14 October and the hearing on 7 December, in addition to the time that had elapsed between the service of the notice on 25 August and the issue of the claim form on 14 October. The duty solicitor had some six hours during the 7 December to make such enquiries and obtain such instructions as she thought fit. This was the second possession claim on materially the same facts. The previous claim had involved a number of adjournments, two of them granted by this Judge. The Judge in fact considered the question of Ms O'Connell's disability and the possibility of her raising arguments under Article 8. She considered the possibility of an adjournment in the light of Matthews.
27. The tests under the 1995 Act and the 2010 Act are different, but there was simply no evidence before the court upon which the Judge could have found that there was a seriously arguable case that the arrears that had accrued in 2011 were the consequence of any disability.
28. The decision of Hedley J was not material to anything which the Judge had to decide. It is true that the note of what Hedley J said includes a reference to an argument that "ground 8 in its absolutist form is not compatible with Art 8" as well as to an alternative argument that the court should use its HRA s.3 duty to read ground 8 and s.9(6) in a way as to import some discretion into the proceedings". But he was apparently considering those arguments on the basis of information that all the arrears had been paid in full a few days after the possession order had been made in 2008. Those are very different facts from the ones with which HHJ Knowles was concerned, but as noted above, HHJ Knowles expressly considered that an Art 8 an argument could be raised, although she held that there was no basis for it on the facts before her.
29. The absence of the consent order, and in particular the fact that it contained no conditions, was immaterial. There was no dispute that Ms O'Connell had a second property, and that in the three years in between the two sets of proceedings she had in fact failed either to move into the property which she owned or to sell it.
30. In my judgment, in spite of the opportunity offered to Ms O'Connell to explain by evidence why she was not able to advance her case on 7 December 2011, she has made no attempt to do so. For the reasons given by Mr Holbrook there is no real prospect of her showing that on the material before the Judge the Judge was wrong or that there was any material procedural error.
31. This application is therefore dismissed.