Gateway B and Equality Act – summary hearing?

A quick note on an ongoing County Court case that raises some interesting questions. (As it is an ongoing case, all apparent statements of fact are as set out in the judgment and should be taken as being untested at trial).

Leicester Housing Association Ltd v Armstrong. Leicester County Court 5 March 2013 [Not published elsewhere, we have a copy].

This was the summary hearing of Mr Armstrong’s defence to LHA’s claim for possession. Mr A had a ‘starter’ tenancy from LHA, which was an assured shorthold of 12 months term. At the end of the 12 months, the tenancy would automatically convert into an assured tenancy, provided that no steps had been taken to gain possession in the meantime. The property was a 2 bed flat in a new build scheme, a mix of social housing and private ownership. Barretts (for they were the developers) still had a sales team on site.

On the evidence at the summary hearing, (and therefore as yet untested), Mr A was homeless, a former serviceman and police officer. At interview with LHA it was noted that Mr A was subject to fits and seizures. He also had mental health issues, resulting from service experience, and an ongoing battle with alcohol dependence. LHA had a medical report on these issues prior to granting Mr A a tenancy.

The tenancy agreement had usual sort of clause on not causing a nuisance to people living, visiting or otherwise lawfully in the vicinity of the property.

The tenancy agreement said that a s.21 notice could be used to end the starter tenancy if the tenant’s behaviour was a breach of tenancy conditions. It went on to set out a review procedure of a decision to use a s.21 notice. The tenant could request a review of the decision within 14 days of service of the notice. The review would be carried out in accordance with the ‘starter tenancy policy’.

The policy stated:

7.7 At the appeal hearing the Officer (responsible for serving the Notice) will present their evidence for the case. This should include the following . .
Evidence (eg case note, diary sheets, witness statements, warning letter) . . .
Vulnerabilities/support needs. . .

7.8 The resident will then be called on to explain their version of events and the reasons why LHA-ASRA should not start legal proceedings to claim possession of their home. The resident may bring along someone for support but this should not be a legal representative.

7.9 The Chair of the meeting will review all the evidence and inform the resident of their decision within 7 days of the appeal hearing. This should be done via letter and should include a summary of the key findings.

There were apparently a number of complaints about Mr A’s alleged behaviour. There was a meeting about Mr A between a police officer, a consultant psychiatrist and a housing officer from LHA (Mr PW), about which Mr A was not informed. Nor was Mr A provided with the notes of the meeting. Shortly afterwards  Barretts sent an email with complaints about Mr A’s alleged behavior. A few days later, Mr PW served a section 21 notice on Mr with a letter stating that this was “because complaints of anti-social behaviour had been made against you, members of your household and/or visitors to your home”. There was no further detail of the alleged behaviour or complaints.

Mr A put in an appeal against the section 21 notice, without knowing the specific allegations against him. Mr A accepted that he had been ill because of changes in his medication, that ambulance teams had attended, with the police as this was required by the ambulance service, but denying being violent, threatening or committing ASB.

Before the hearing of the appeal, LHA told Mr A they were to discuss ‘complaints from four residents regarding police having to be called [...] because of inappropriate or dangerous behaviour in your home and the surrounding area”. This was apparently the extent of the information given to Mr A about the allegations before the hearing.

Immediately before the hearing and apparently at the Claimant’s request, Mr A’s Community Nurse wrote to the Claimant setting out that Mr A had maintained his abstinence from alcohol and that there had been no incidents involving the police since the ‘professionals meeting’.

The appeal hearing resulted in a decision to uphold the section 21 notice. However, the note of the meeting raised 5 specific incidents apparently raised by Barretts and other residents. It was no clear if these had been put to Mr A. The incidents as noted did not tally with those raised in the ‘professionals meeting’, either by date or in the detail, such that it did not appear that the appeal hearing had the full facts in front of it. Mr PW was not at the hearing and did not ‘present the evidence’ for the case. The conclusions of the note of the hearing also appeared to have failed to take into account the information from the Community Nurse.

A claim was issued. Mr A’s Defence raised:

  • An Article 8 proportionality defence,
  • A Gateway B public law defence that the Claimant had failed to follow its own policies and procedures with regard to the decision to invoke and pursue the section 21 proceedings
  • That Mr A had a disability within the meaning of the Equality Act 2010 and issuing and continuing the proceedings was discriminatory.

At first hearing, the matter was listed for a 2 hour summary hearing to determine whether the Art 8 and gateway B arguments could proceed. However, and perhaps oddly, the Equality Act defence was also considered. LHA conceded it was a public body, reserving its position on this should the case go to the Supreme Court.

On the Art 8 and Gateway B, the test the Court set was that the defences cross the threshold of being ‘seriously arguable’ with guidance from  the higher courts that the threshold was likely to be crossed in very few cases.

On the Equality Act, the Court noted that ‘there appears to be no decided case on the applicable test as to whether an Equality Act defence should be allowed to run at trial. We’ll come back to this.

On the Gateway B argument

Mr A argued that the review process was unfair, unreasonable, in breach of natural justice, and failed to follow the Claimant’s procedures, policy and tenancy agreement.

Mr A did not know the case he faced at the appeal hearing, Eastland Homes Partnership v Whyte [2010] EWHC 695 [our report]. The Appeal hearing considered matters of which MR A had had no advance warning and evidence with which he had no been provided. The appeal hearing was not conducted according to the starter tenancy policy, Mr PW did not ‘present the evidence’ and the evidence had not been supplied to Mr A. Mr A was not then allowed to explain his version of events.

Further, the policy required the Claimant to be satisfied that there was a breach of Clause D of the tenancy agreement (the nuisance clause for the purpose here). The Claimant had not attempted to so satisfy itself that there was a breach.

The Claimant argued that their scheme followed the Introductory Tenancy statutory scheme. Therefore R (Ex p McLellan) v Bracknell Forest BC [2001] 33 HLR 86 should be followed, the appeal hearing was not a formal hearing, there was no obligation to provide witness statements or schedules of allegations. The panel could determine how it carried out is function and reach a view as to the credibility of the Defendant. There was no requirement to make findings. The Claimant was entitled to take a broad view of matters. The Defendant should not be given a higher degree of protection than the Introductory tenancy regime. In any event, the available powers on a successful gateway B defence were akin to judicial review, so that at most the matter would be remitted back to the Claimant for fresh consideration, which would in practical terms make no difference [apparently pre-deciding any remitted decision].

The Court found on this ground that the Claimant’s scheme differed from the Introductory tenancy scheme. It was not statutory and was regulated by contract. While for an Introductory tenancy termination it was not necessary (pace Powell) for the Local Authority to be able to show that complaints were well founded, in this case the termination procedure could only be used if the tenant’s behaviour amounted to a breach of tenancy obligation. Therefore the Claimant had to determine whether the Defendant’s behaviour amounted to a breach of tenancy and the review should consider this issue. It was not sufficient for the Claimant simply to be satisfied that the Defendant was not a suitable person to be a tenant. This point crossed the ‘seriously arguable’ threshold,

When a review occurred it should:

  • Be conducted in accordance with the rules of natural justice
  • Address the key issue of whether the Defendant was in breach of the tenancy agreement and, if so, whether it was proportionate to seek an order for possession. Unlike Powell, this required a factual determination.

The Defendant was entitled to, at least, know the d the dates and substance of allegations against him. In this case it appeared that there were differences in nature and extent of allegations in the various accounts relied on by the Claimant.

The Officer serving the Section 21 did not ‘present the evidence’ at the review hearing. In the absence of other steps being taken to ensure the case and evidence was properly and fairly put, this might amount to a breach of the rules of natural justice.

The Defendant’s medical position and the report from the Community Nurse was not considered. The Defendant was apparently not even aware that a report had been obtained. Again a seriously arguable breach of natural justice.

On the Claimant’s argument that remitting the decision would make no difference, not only was it uncertain that this would be the case, a valid gateway B defence would be a complete defence to these proceedings.

On Article 8.

The Defendant argued that the Claimant proceeding with the claim for possession was disproportionate where there was no evidence or allegations of any bad behaviour since March 2012 (this hearing taking pace in January 2013).

The Claimant said that this had not been raised before, nor was any evidence of good behaviour filed. There was a last minute statement from Mr PW setting out more allegations between July 2012 and November 2012.

The Court rather oddly refers to the Claimant relying on ‘the dicta’ of Cranston J in Southend BC v Armour [2012] EWGC 3361 (QB) [our report] and then ‘to the view of Cranston J as ‘per incuriam’, apparently finding that subsequent good behaviour should not be taken into account (it may be that the transcript has errors here, but this is what it says). In any event, the Article 8 defence was found not to pass the ‘seriously arguable threshold’ and was not permitted to go to full trial, at least insofar as it was not the same as the gateway B and Equality Act defences.

On the Equality Act defence.

This was dealt with pretty much at the last minute, as the Defendant had assumed the matter would have to go to full trial and the Claimant had accordingly not responded on the point.

The Defendant argued that the Defendant had been discriminated against, unlawfully under section 15 Equality Act 2010, and that the Claimant had failed to take into account a mandatory consideration, section 149 Equality Act, in dealing with the Defendant.

The neighbours were upset because of the police attending the property, but this only occurred because of the Defendant’s mental state and because the ambulance crews required the police presence due to the Defendant’s medical history. Taking proceedings against the Defendant on the basis of those complaints from neighbours was a direct result of the Defendant’s disability and prima facie discriminatory.

The Claimant argued that the Equality Act defence should be subject to summary determination, although possibly on a lower threshold of ‘an arguable case’ rather than ‘seriously arguable’. But the answer was no, the possession claim was a proper and proportionate way of achieving a legitimate aim.

The Court found that, although this was not one of the types of cases to which summary determination applied, the issues raised were similar to the Gateway B and Art 8 issues. So, as there was a summary hearing it seemed sensible to consider the Equality Act issues at the same time.

In the absence of any authority for the threshold for doing so, the Court assumed the CPR 24 rule of ‘a real (as opposed to fanciful) prospect of success’, taken as being lower than ‘seriously arguable’.

On the basis of the pleaded case, the Defendant suffered from a disability within the meaning of the Equality Act 2010. The Claimant was aware of the Defendant’s disability.

The Decision to serve the section 21 notice and issue possession proceedings was taken (at least in part) on the basis of the Defendant’s mental health and therefore amounted to unfavourable treatment on account of his disability.

The issue was whether this was a proportionate means of achieving a legitimate aim. While the legitimate aim was likely to be the Claimant’s management of its housing stock and protection of others in the neighbourhood, the question of whether it was proportionate would involve evidence on whether there were other means of managing whatever risks might be posed by the Defendant’s health issues and a finding as to what those risks were. On the limited available evidence, it was arguable it was not proportionate.

The Equality Act claim should therefore go to full trial.

Directions given to trial.

Comment

While this is a first instance decision, and on a summary hearing at that, it is interesting. There is a practical interest in the way in which the court deals with the Art 8 and Gateway B defences, but there are also some substantial issues to consider, not least as they are likely to come up fairly often.

The distinction between a starter AST arrangement and an Introductory tenancy strikes me as right. One does not obtain the quality of a statutory regime simply by emulating its form. A starter tenancy is a creature of contract to the extent that it differs from the basic statutory provision.

The view taken of Southend v Armour, frustratingly briefly addressed, is puzzling. While Armour is indeed under appeal to the Court of Appeal, I have trouble seeing how the decision of Cranston J could be said to be ‘per incuriam’ or indeed ‘dicta’. As a High Court appeal, Armour would seem to be binding. But the transcript is not wholly clear through this whole section, so frankly, who knows what was meant!

Then the substantial issue of the Equality Act defence. Should there have been a summary hearing on this issue at all? Granted, the Court adopted the CPR 24 test for a summary judgment, rather than carrying over ‘seriously arguable’, but while CPR 24 does provide for the court to deal with summary judgment of its own motion, it seems odd in circumstances where there was no strike out application from the Claimant and, as the court admits, very little evidence on the issue before it.

It would be worrying to see courts adopting what would be a self-directed summary judgment hearing on Equality Act cases as a kind of proxy for the summary hearing in Art 8/Gateway B cases, even on a lower threshold. Not least as Equality Act issues are often complex and evidence dependent.

As this matter is ongoing, we will not be commenting on evidence or the merits of the case.

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Posted in Assured Shorthold tenancy, assured-tenancy, FLW case note, Housing law - All, 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 +

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