Proportionality – between claim and hearing

Well, well. A successful proportionality defence on an introductory tenancy and one upheld on appeal. There is also some helpful confirmation about what can be considered in assessing proportionality.

Southend-on-Sea Borough Council v Armour (2012) QBD 18/10/2012 (Not on Bailii. Note on Lawtel and on Garden Court’s site here)

Mr A was the introductory tenant of Southend, living in a flat with his 14 year old daughter. The tenancy started in January 2011. Over the next 3 months there were three complaints that Mr A had been verbally abusive to a neighbour, a member of staff of the property managing agents and some electrical contractors. It was also alleged that he had switched on electricity while contractors were working resulting in one suffering a shock. Southend decided to seek eviction, a decision upheld on review.

Between issue of the claim and the possession hearing, some eleven months elapsed, with a couple of adjournments.

In the meantime, Mr A had been diagnosed with Asperger’s Syndrome and Severe Depression, and he lacked capacity to defend the claim. The case proceeded with a litigation friend.

There had been no further incidents between March 2011 and the hearing of the claim in March 2012. There was also evidence from Mr A’s probation officer and a youth worker as to his recent good behaviour and medical evidence on the potential effect of eviction on Mr A’s physical and mental health.

The Court at first instance, Recorder Davies, found that while Southend had been justified in bringing the claim, and that at the date of claim it would have been lawful and proportionate, Mr A’s subsequent good behaviour and the absence of any further incidents were relevant factors in assessing proportionality at the date of trial. On that basis, it was not proportionate to make a possession order. A copy of the first instance judgment is here.

[The judgment also raises the interesting question of whether such a thing as the 'popular housing press' actually exists - see the post-judgment discussion on permission to appeal.]

Southend appealed. Their argument on appeal was that:
1. Mr A’s compliance with the tenancy agreement issue of the claim was not a relevant consideration for an assessment of proportionality.
2. If the good behaviour was a factor, it was insufficient on the facts to give rise to an Article 8 defence.
3. The Recorder should have approached her decision on the same basis as it would have been considered at the initial hearing, as Mr A should not gain an advantage from the delay caused by the adjournments.

Mr Justice Cranston dismissed the appeal.

The overriding principle was that consideration by the Court depended on the facts of each case. (Corby BC v Scott [2012] EWCA Civ 276, [2012] H.L.R. 23 ). It was clear that subsequent behaviour, even good behaviour, could be a relevant consideration for proportionality. (Manchester City Council v Pinnock [2011] UKSC 6, [2011] 2 A.C. 104 and Hounslow LBC v Powell [2011] UKSC 8, [2011] 2 A.C. 186). The proportionality review by the court had to be on the basis of the material available at the time of the hearing. The Recorder had approached the issue of proportionality correctly and there was no error in her decision, which was a ‘model judgment’ in how such cases should be dealt with.

So, useful confirmation that the proportionality review by the court is to be based on all materials up to the date of that hearing, including post issue materials and events (or lack of them).

We always took it that the principle is that the decision to seek eviction is an ongoing one,that should be under review in changing circumstances in order to consider whether it remains proportionate. This is an affirmation of that by the High Court.

It is also a useful case on the significance of post notice conduct in Introductory tenancy possession cases.

m4s0n501
Posted in FLW case note, Housing law - All, Possession, Succession 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 +

15 Comments

  1. I am the litigation friend involved in this case! it was a massive concern that on an introductory tenancy that you have very few legal rights! A massive thankyou to naz at law hurst and taylor solictors for believing in robert and to racheal at law hurst and taylor who assisted with the appeal! We had an exellant barrister and qc in the high courts! This may help others in this situation and all I can say is if you believe your in the right you have to fight! We had the odds stacked against us on a huge scale and we never gave up and won! Again thankyou to all involved!

    • I am not just impressed the case was successfully defended, but that the Claimant’s desire to recover their legal costs from the defendant was successful too. It also creates an interesting piece of case law. Certainly the claimant should’ve withdrawn their case once they discovered the defendant had a disability that was the root cause behind some of the alleged breaches of the tenancy agreement.

      Sadly public bodies tend to not deal very well with human rights or equality issues as they take an overly black/white stance on some matters.

  2. Is there any purpose to introductory tenancies if they don’t allow a public body mandatory possession?

    It feels to me the courts are striking down public policy that – while perhaps not particularly fair to some individuals – delivered benefits to the wider social housing population.

    • Mandatory possession was always subject to the courts, the unusual elements of this case mean it is unlikely to apply apart from very unusual sets of circumstances involving a disabled tenant in receipt of legal aid, legal delays, properties with gas and lack of understanding by landlords of equality legislation. The tenant could’ve sued the landlord under the Equality Act 2010 claiming that the eviction was because of their disability and with past experience of cases involving disability as long as it can be proved that the disability relates to the behaviour, then courts have to look into whether they’ve been unfairly treated because of their disability.

      In this case, the person was diagnosed after proceedings for eviction were brought with depression and Aspergers Syndrome. Therefore its unusual as that would only apply to a small fraction of the population.

      • John, I think that is not right. While the specific facts of this case would certainly be of limited application, there is a broader general principle here, that in considering proportionality of eviction, the court can consider factors (including behaviour) up to the date of final hearing, regardless of the date of issue of claim, or service of notice. That could apply in a lot of cases.

        An Equality Act claim wouldn’t have stopped the eviction, although a public law defence that the eviction was an unlawful breach of equality duties might. It is not clear that there was any direct link between the tenant’s behaviour and his diagnosed conditions, though.

        • You are right an equality act case wouldn’t have stopped the eviction, but as to the broader general principle, obviously as a Court of Appeal judgement is applies to lower courts, but this would never be caselaw unless Southend-on-Sea Borough Council had launched an appeal against the County Court Judgement.

          My point is that the balancing act is now between different rights (the rights of the landlord and tenant) is only weighted on the claimant’s side (assuming the Claimant is a tenant) in the narrow set of circumstances described in the case.

          Bear in mind the very condition the tenant suffers from means the person has difficulty in dealing with change for example having to move house as a result of getting evicted.

          The public law equality duties have a lot of caveats and wouldn’t apply unless the landlord was a public body. Most local councils have sold off the majority of their housing
          stock.

          “It is not clear that there was any direct link between the tenant’s behaviour and his diagnosed conditions, though.”

          That’s because you’re not familiar with people with the conditions specified. In my view there is, but yes it is subjective and really something that should be subject to expert witness evidence.

          • John,

            This is also not right. First it is not a question of the ‘balance’ only being weighted on the Claimant’s side in these specific circumstances. It depends on the circumstances of each individual case. This is expressly the point of proportionality – see Pinnock.

            Second, the tenant’s condition was not a decisive factor in the case, let alone any ‘difficulty in dealing with change’ in having to move house.

            Please read the first instance judgment before making assumptions about the reasons for this decision.

            You make a huge presumption about my familiarity with people with these conditions. You would also be wrong. But it remains the case that it was not the decisive issue in the judgment.

            Whether a council has sold off it’s stock on not usually has no bearing on whether the landlord is classed as a public body for these purposes. See Weaver v LQ or Poplar Housing and Regeneration Community Association Ltd v Donoghue [2002] QB 48

    • inks, I don’t think you’ve grasped what a proportionality defence actually means. If succesful, it means that the means adopted by the Council are unnecessarily disporportionate to the (public policy) aims and as such a breach of the Council’s duties under the Human Rights Act (itself a public policy). The public policy of intro tenancies – that of providing for effective termination of trial tenancies on basis of behaviour making a permaanet tenancy unsuitable – remains and still operates.

      • Well the Human Rights Act 1998 c.42 gives a lot of different grounds it can be challenged on.

        You are right that it doesn’t challenge the underlying policy of introductory tenancies, as that wasn’t really the issue here.

        The issue was whether the tenant’s behaviour was linked to the claim by the landlord that the tenancy should be ended on those grounds and whether this was down to factors beyond the tenant’s control (disability).

        • John,

          No, it wasn’t. The tenant’s disability was not a deciding factor in the judgment. The absence of further offending behaviour was. Please do read the first instance judgment, linked in the post.

          • Well the absence of further behaviour was because the Claimant was diagnosed… and the Claimant has a diagnosed condition which means they adhere to the rules, we’re both right, but the judgement can be interpreted differently depending on your bias and background.

            The truth is there are multiple human rights arguments in this case as the Claimant has a disability they were born with, which leads to prejudice and problems in communication, social interaction and imagination.

            The factor of no further incidents are partly down to the fact the disability was diagnosed and that the Claimant had legal advice and legal help. If the claimant hadn’t received medical and legal assistance I think the outcome would have been eviction.

            • John,

              Unless you were personally involved in this case, which I don’t believe you were, you have no way of knowing what you are asserting here. It is, in any event, beside the point on the legal issues and on the basis on which this case was decided. It is not a question of ‘bias and interpretation’ of the case, it is about what the judgments actually say.

              So this exchange ends here. You are frankly making things up where you have no knowledge. This doesn’t help anybody at all.

  3. The council’s application for permission to appeal and permission to adduce further evidence was listed to be heard today by Arden LJ. Anyone know what happened?

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