Proportionality, Section 21 and starter tenancies

Another RSL ‘starter tenancy’ and s.21 case, albeit one that marginally pre-dated West Kent HA v Haycraft, is The Riverside Group Limited – v – Sharon Thomas [2012] EWHC 169 (QB) 2 March 2012 (Manchester District Registry) [Not on Bailii. We've seen a transcript].

This will be a quick note, as the general principle has been established that proportionality defences are available for Housing Association ‘starter tenancies’, being assured shorthold tenancies, where possession is sought via section 21 notice. In addition, Ms Thomas was in person, and failed to appear, after her solicitors came off the record for lack of co-operation, so the extent of argument was limited.

Ms T was Riverside’s starter tenant, on an assured shorthold tenancy from 6 April 2009. By JUne 2009, Riverside were aware of complaints of ASB and a notice requiring possession was served in July 2009. Ms T was offered a ‘right of appeal’ and a hearing took place in September 2009 before a panel of Riverside representatives. The ‘appeal’ was refused and a claim for possession issued. A defence and counterclaim was filed. After adjourned hearings, the claim was stayed pending the decision in Pinnock.

In the meantime, following continued allegations of ASB, Riverside had sought and obtained a 2 year ASBI. On allegations of breaches, committal was sought and this was listed at the same time as the re-listed possession hearing. The whole matter was then bumped to the High Court when Ms T’s revised Defence and Counterclaim pleaded that Section 21 possession procedure was incompatible with the ECHR.

The issues as presented in the amended Defence and Claim were that domestic legislation permits the imposition of a suspended or postponed possession order on terms in a starter tenancy possession claim and, alternatively a declaration of incompatibility as against section 21. There was also a proportionality defence, following Pinnock and Powell. In addition, Ms T contended that fresh allegations of ASB, following the ‘appeal hearing’ should bring a right to a fresh internal appeal.

Riverside conceded that it was a public body. It further conceded that its ‘starter tenancy’ scheme was analogous to (and based upon) the introductory tenancy scheme, so that Pinnock and Powell applied precisely.

The High Court (Mr Justice Ryder) decided that the issues to be determined were:

(a) Where possession proceedings are issued and there are then allegations of further anti-social behaviour is the Defendant entitled to a further internal appeal?

(b) Ought the court to consider the possession claim summarily?

(c) Does the court have power – in principle – to suspend or postpone possession on terms and, if so, ought it to do so?

(d) Ought there to be a declaration of incompatibility in relation to section 21?

On (a), the Court held that there was no such entitlement. A process that required further internal reviews to run, presumably alongside litigated proceedings, for each fresh allegation would be cumbersome and unneccessary. It would plainly fly in the face of:

the whole rationale behind the accelerated possession procedure which does allow personal circumstances (and where necessary facts) pre and post the issue of proceedings to be considered, albeit within the scope of the decisions in Pinnock and Powell

On (b), the Court considered Pinnock and Powell, taking the view that in the case of an introductory tenancy (and by analogy, a starter tenancy) the Court should consider a proportionality defence

only “in very highly exceptional circumstances” if the Article 8 issues have crossed the “high threshold of being seriously arguable”. (See Powell at paragraphs 92 and 33).

As the Court should only consider the defence in ‘very highly exceptional circumstances’ it followed that this stage would only be reached in a small proportion of cases [See my comments below]

This is particularly so since (i) in virtually every case where a residential occupier has no contractual or statutory protection and the landlord is entitled to possession as a matter of domestic law, there will be a very strong case for saying that the making of a possession order will be proportionate; (Pinnock at paragraph 54) (ii) there is a relatively low threshold for the landlord to cross to justify terminating an introductory tenancy; and (iii) there are significant procedural safeguards within the introductory tenancy system including the provision of reasons for seeking possession and the right to a review of that decision. (Powell at paragraphs 90, 92 and 94). This analysis applies equally to the Claimant since the Claimant’s starter tenancy regime effectively mirrors the introductory tenancy scheme in all material respects including the provision of reasons and right to a review (which was exercised in this case).

In the absence of ‘very highly exceptional circumstances’ the Court should make a summary possession order.

Where a proportionality defence was raised, the Court’s powers extended to reconsidering for itself the facts found by the landlord, or that had arisen since the commencement of proceedings. However:

it is not a requirement in the introductory tenancy scheme nor is it a requirement of the starter tenancy scheme for facts to be proved in order to justify a decision to terminate a tenancy. Rather the right question under these schemes is whether in the context of allegations and counter-allegation it is reasonable for the landlord to take a decision to proceed with termination of the tenancy (Powell at paragraph 93).

In any event, in this case, facts had been admitted by the Defendant in the injunction proceedings.

The Claimant submits that in the instant case the Defendant is arguing for a full consideration of proportionality from a remarkably weak position – for example having already been made the subject of a two year injunction based on admissions of anti-social behaviour and in a position where she faces two outstanding committal applications in respect of breaches of the injunction and there have been ongoing allegations of anti-social behaviour from neighbours, all of which are evidenced before the court and which continue up to September 2011. I agree.

While the Defendant had raised mental health and alcohol abuse vulnerabilities in an earlier hearing, no further evidence had been raised in relation to these and these were no sufficient evidence to say the ‘seriously arguable’ threshold had been crossed in any event.

On the Claimant’s argument that the ‘public policy’ reasoning for introductory tenancies acknowledged in Powell extended to starter tenancies and the s.21 procedure, the Court found:

The court accepts that the Claimants reliance on “public policy reasons” taken from the judgment of the Supreme Court in Powell should be received with caution. This decision was made following consideration of evidence provided by the Secretary of State for Communities and Local Government in relation to the introductory scheme. This is a specific statutory scheme introduced by Parliament. Evidence was provided to explain the public policy reasons for introducing those provisions. There is no such evidence concerning the starter tenancy scheme because Parliament has not (yet) introduced such a statutory scheme. This is a scheme introduced by individual landlords and has no statutory force save for the underpinning provision of section 21. When section 21 was introduced it was arguably not based on the same public policy reasons that the introductory tenancy scheme was introduced. However both schemes provide for temporary security of tenure and in my judgment despite this caution and in the absence of full argument, it appears to be right to read across public policy reasons in the manner contended for by the Claimant

Summary possession order granted.

On (c) – a power in principle to suspend possession or impose terms – there was no other power save that in s.89 Housing Act 1980, 14 days or 6 weeks in cases of exceptional hardship.

On (d) – the declaration of incompatibility:

44. The Secretary of State, through the Treasury Solicitor, considers that this issue has been answered in Pinnock and Powell. I agree. No issue of incompatibility arises with regard to section 21. So far as section 89 is concerned its meaning and effect is plain and no incompatibility arises here either.

45. In any event a declaration would add nothing, and would change nothing, as between the parties to this litigation. It does not provide grounds for granting any form of relief against the Claimant (section 4(6) of the 1998 Act).

Immediate possession order made and the matter set down for the hearing of the first committal application.

Comment

This was, by any measure, a very weak case for the Defendant. Admitted and ongoing ASB, solicitors coming off the record and a lack of detailed argument together make this a case that was doomed to fail.

However, there are two areas of concern in the way the Court approached the matter.

The first is that, while admitting an absence of argument on the point, the Curt was prepared to extend the ‘public policy’ justification for limited security of tenure from introductory tenancies to ‘starter’ tenancies, apparently simply on the basis that the Claimant asserted its starter tenancy regime was modelled on the introductory tenancy scheme. This may need to be argued in detail in future.

The second is the use of ‘very highly exceptional’ as a threshold. This is, as we’ve argued before, not an accurate response to the use of the term in Pinnock, and the sole reference in Powell (at 92), referred to in this judgment, makes clear that exceptionality is a question of outcome, not a threshold test:

In paras 51 to 53 this Court in Pinnock commented on the proposition that it will only be “in very highly exceptional cases” that it will be appropriate for the court to consider a proportionality argument. I believe that this proposition is an accurate statement of fact in relation to introductory tenancies. This is because the 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 that I have described in para 90 above.

The issue is solely the seriously arguable threshold. There is no ‘exceptionality’ test. It is disappointing to see the High Court apparently adopting it.

In any event, the ‘exceptional’ outcome is in relation to all introductory possession claims, not those in which a proportionality defence is raised. It would be theoretically possible for all proportionality defences to successfully raise seriously arguable defences and for the outcomes to still be exceptional.

Posted in Assured Shorthold tenancy, FLW case note, Housing law - All, Introductory and Demoted tenancies, Possession and tagged , , , , .

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +

2 Comments

  1. I have to say I disagree with the analysis here on the second area of concern. I agree with the High Court’s approach.

    The key part of the judgment of Powell at 92 is the first sentence quoted above. It is worth quoting again:

    “In paras 51 to 53 this Court in Pinnock commented on the proposition that it will only be “in very highly exceptional cases” that it will be appropriate for the court to consider a proportionality argument.”

    The key word is consider. This is not concerned with an ‘outcome’ but a threshold.

    The ‘outcome’ part of the proportionality test is in relation to weighing up the factors to grant an order for possession against the factors against granting an order. Unless you have an exceptional threshold (or later referred to as substantial grounds)any factors, however trivial, could be used in the proportionality test as a Defence.

    • D, I have to disagree.

      Pinnock did not say what the Court here derived from the reference in Powell. Here is para 51 and part of 52 of Pinnock:

      51. It is necessary to address the proposition that it will only be in “very highly exceptional cases” that it will be appropriate for the court to consider a proportionality argument. Such a proposition undoubtedly derives support from the views expressed by Lord Bingham, and has been referred to with apparent approval by the EurCtHR in more than one case. Nevertheless, it seems to us to be both unsafe and unhelpful to invoke exceptionality as a guide. It is unhelpful because, as Lady Hale pointed out in argument, exceptionality is an outcome and not a guide. It is unsafe because, as Lord Walker observed in Doherty v Birmingham [2009] 1 AC 367, para 122, there may be more cases than the EurCtHR or Lord Bingham supposed where article 8 could reasonably be invoked by a residential tenant.
      52. We would prefer to express the position slightly differently. The question is always whether the eviction is a proportionate means of achieving a legitimate aim.

      That has to be abundantly clear. Exceptionality is not a guide. It is an outcome.

      Note that the para in Powell cited just says that the SC in Pinnock ‘commented on the proposition’. Indeed it did – in the terms above. Not endorsing it.

      With respect, whether you agree with the High Court’s approach here is not really the issue. The Supreme Court doesn’t.

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