Our previous report on the possession claim in Defence Estates v JL and another [2009] EWHC 1049 (Admin) can be found here. There now follows a judicial review of the decision to enforce the possession order made in that claim: JL v SS for Defence [2012] EWHC 2216 (Admin) [not yet on Bailii], heard by Justice Simler QC on 30/7/2012.

After the making of the possession order in JL1, the Claimant was accepted for the full homelessness duty by Leeds City Council and she was placed in the highest band on the Council’s allocation scheme. JL’s household comprised an adult daughter with mental health problems and a grandchild with Crohn’s disease. JL herself was wheelchair-bound, which meant that the search for suitable alternative accommodation was never going to be straightforward. The Minister refrained from enforcing the Order pending enquiries into alternative accommodation until a letter was sent to JL’s solicitors on 8/11/10 warning them that the eviction would proceed unless up-to-date evidence was provided to persuade the minister otherwise.

There was no response and the warrant was issued on 9/3/11. The JR claim was issued on 24/3/11, permission was granted and 4 weeks before the hearing, Leeds CC undertook to arrange temporary accommodation for the family, except that they could not guarantee that cooking, bathing and washing facilities would be accessible to JL.

There were 3 grounds for the Court to consider: 1. the Defendant failed to have regard to considerations of mandatory relevance (i.e. absence of suitable alternative accommodation/no consideration of effects of eviction on household) 2. absence of Art 8/proportionality review at enforcement stage 3. the decision to evict was unreasonable

In rejecting Ground 1, The judge referred to the absence of a response to the letter of 8/11/10 and to a ministerial submission of 8/2/11, where the household’s circumstances were considered when the decision was made to evict.

As far as Ground 2 was concerned, the judge rejected the Defendant’s contention that the Claimant was not entitled to a proportionality review at the enforcement stage. The judge held that this would involve too literal a reading of Pinnock, Powell and  Zehentner. The judge held [at para 61]:

a proportionality review can be considered at the enforcement stage in an appropriate case, but not in every case. Where the question of proportionality has been raised and addressed at the possession stage, or where it could have been raised and addressed, it will be difficult for the tenant successfully to invoke it absent a marked change in circumstances or some other exceptional reason justifying its consideration. In the vast majority of cases where enforcement takes place (without any need for the service of a notice that a warrant has been applied for or issued) within days or weeks of the possession order, it is unlikely that such a justification will be capable of being established.

In this case, there had been a substantial lapse of time between the making of the possession order on 5/5/09 and the warrant of 9/3/11 and the Judge decided that JL was entitled, even within judicial review proceedings, to a proportionality review (NB this approach would be consistent with ECHR jurisprudence, as set out in Bjedov v Croatia-see our report here ).

The Judge concluded that it would not be disproportionate or unreasonable to evict: the responsibility of avoiding the hardship that eviction would cause to the family had been assumed by Leeds City Council. Although there was no guarantee of suitable accommodation upon eviction, JL had been given the highest priority for re-housing to permanent accommodation, which meant that her stay in temporary accommodation ought to be short-lived. Furthermore, JL had no right to occupy her present property indefinitely and there was no evidence that eviction would have a greater impact now than several months down the line.

Footnote: It is worth noting that the judge commented (at para. 73) that the property at the time of the possession order had actually been surplus to MOD requirements. This is interesting because the original claim proceeded on the assumption that the property would be required at short notice (see paras 52 and 57 of Collins J’s judgement). However, there was no argument of Article 8 necessity at the enforcement stage as the MOD provided witness evidence that the property would either be allocated to another service family or it would be sold on.