It is well known that notices under section 21(4)(a) of the Housing Act 1988 must give notice to a tenant that “after a date specified … being the last day of a period of the tenancy … possession of the dwelling-house is required”. This is an issue that has been before appellate Courts a surprising number of times. Most notably in MacDonald v Fernandez [2003] EWCA Civ 1219.

In Church Commissioners v Meya [2006] EWCA Civ 821, the Court of Appeal made a close reading of section 5 of the Act and held that it should be construed as reading that the periods of a statutory periodic tenancy created by that section “are the same as [the periods] for which rent was last payable under the fixed term tenancy.” In short, then, if I pay the rent under the fixed term quarterly then once the tenancy becomes periodic by way of s5 the periods remain quarterly, irrespective as to how rent was then paid. This leaves open two key questions:

1. What happens if the tenancy becomes periodic by way of contract and section 5 is not involved? and
2. What happens if the rent payment day is changed during the fixed term? Does this alter the start and finish dates of the periods of the tenancy when the tenancy becomes periodic?

The first question will have to await another day because it was the second of these questions that came before DJ Batcup in Staines.

In this case S had let a property to A from 18th August 2007 to 17th August 2008 with a rent of £1,200 payable on the 15th August 2007 and 15th January 2008. A further tenancy was granted for another 12 months from 18th August 2008 to 17th August 2009, rent being payable bi-monthly in advance starting on the 11th August 2008. After August 2008 the tenancy continued on a periodic basis. A notice under section 21(4)(a) was served on 1 April 2010 seeking possession “after 17 June 2010 or, if later, the day on which a complete period of your tenancy expires next after the end of two months from the service of this notice.”

Basically if the periods of the tenancy were as set out in the tenancy agreement then possession should be given whereas if it was accepted by the Court that the start and finish dates of the periods had been changed by the changed payment provision then the notice would have to rely on its saving provision and could not therefore expire until 10 August. Proceedings were issued before 10 August and so this position would be fatal to possession proceedings.

Ultimately DJ Batcup came down on the side of ruling the notice valid and awarded possession.

This case actually raises a serious question as to what a period actually means. Following DJ Batcup’s view there is an indirect correlation between the payment dates and periods. In other words a periodic tenancy can run from period to period without there being a presumption that rent is due at the start of the period for that period. This is hard to credit and certainly runs counter to the usual rule at common law. The reasoning also runs counter to that of the Court of Appeal in Tadema Holdings v Ferguson where it was held that an agreed change in payment dates did change the periods of the tenancy for the purposes of a s13 rent increase notice. However, in Church Commissioners the Court expressly rejected the idea of a “symmetry between the statutory provision and the common law rule” when considering the length of a period.

We understand that this matter has been appealed to a Circuit Judge so there will be a further installment at a later date.

With thanks to James Browne of Lamb Chambers

For a taster of what is to come, here is the first foray of Suzy Butler into the media – the local paper. Note the ‘squatter’ motif, although the local paper does at least have the limited presence of mind to put the term in quote marks.

Then there is this:

Let us pause here to note that Ms Nobre was given an assured shorthold tenancy, paid what appears to be in the order of 6 months rent in advance and remained the tenant of the property, probably on a statutory periodic tenancy. Let us also note that, although facts are hard to discern in the fog of Ms Butler’s variable accounts of events, her father is reported to be a property developer and professional landlord.

GMTV returned to villify the tenant some more a day or so later. By this time, amazingly, Ms Butler isn’t in the tent anymore.

Unsurprisingly, the tenant gave up in the face of some serious media vilification and moved out. Naturally, Ms Butler had cameras on hand for her return.

So, who goes on the step?

Ms Butler is undoubtedly one of the dimmest of accidental landlords. Here, for example is a screen capture apparently from a BBC South East news item of what is apparently the ‘notice’ she served on the tenant (click for bigger).

And in fact, from documents that were shown in a BBC South East news programme on 10 August, it appears that she gave an ‘extended agreement’ to Ms Ombre on 25 May 2010, up to 5 August 2010. This suggests that the ‘notice’ above, dated 28 July was sent after a first missed rent payment in July and Ms Butler’s appearance, with a tent, in the local paper on 7 August stating that ‘she had to wait for two months missed rent to serve notice, which had been done the day before’ was immediately after a second missed rent payment on 6 August. Which makes the whole ‘tenant supposed to leave in April when Ms Butler returned’ story deeply suspect. Ms Butler is very welcome to clarify (as indeed is Ms Nobre).

But of course she is far from alone in saying “I can’t understand how I can have no right to enter the home I bought”, when it is not her home but a property she has let to someone else. Her petulant rage and self pity at actually having to obey the law are deeply unappealing, but again, hardly unusual. What is more unusual is that Ms Butler is not only prepared to court the media to implicitly announce to the world that her own stupidity means that it is unfair that the tenant is accorded legal rights against her, but has decided to actively campaign on the basis of the moral correctness of her own lazy ignorance. (Perhaps unsurprisingly, that Facebook page has apparently repeatedly deleted comments vaguely critical of Ms Butler’s stance on the basis that it is, well, against the law and she has behaved unlawfully – on which more below) [Edit 21/8. Someone had put a link to this post on that Facebook page. That has now been deleted by the page Admin].

In a final display of dimwittedness, Ms Butler and her supporters have announced they will be taking their campaign to Parliament, with her local MP – Mike Weatherly – but this is on 24 August, when Parliament is still in recess. Top lobbying work there. (Mr Weatherly can be contacted via here, should anyone feel he needs a spot of housing law explained to him).

And then there is GMTV, allegedly a news organisation, at least whose output is classed as such for the purposes of regulation. Their reporter repeatedly and utterly wrongly describes the tenant as a squatter, sympathises with Ms Butler when she says that the ‘squatter’ doesn’t answer the door to her when she goes to the house, apparently without notice, except once when she went with the police (showing their usual standards in L&T issues) and who then – with Ms Butler – turns up at the property unnannounced and demands to know why the tenant is still there. After standing by as the camera delightedly films Ms Butler petulantly ranting at the tenant inside the house, the reporter then demands to know when the tenant will leave.

And, frankly, that tent was so obviously put up for the camera that it screams out in full ‘Drop the dead donkey‘ bloodstained-cuddly-toy-abandoned-in-disaster-zone style.

In the follow up GMTV section, one anchor (Sally Smedley to a tee) asks, in tones of incredulity, ‘why can’t the landlord turn up with the police, or turn the electricity off, as so many viewers have emailed to say they should do this?’. When the barrister guest explains that this is a criminal offence, the other anchor, astonished, says ‘even though it is your house?’ (The barrister, Philip Rainey QC, is not as clear as could be wished for on the question about homelessness and council rehousing, to be honest, but then Tanfield Chambers aren’t noted for their expertise in homelessness. If only GMTV had asked about leasehold enfranchisement… But he otherwise does pretty well indeed in the face of some ridiculous posturing from the anchors).

So, this is a ‘news organisation’ that, on the sole basis of a (youngish blonde) dodgy amateur landlord’s flaky, unquestioned and unsupported story, is prepared to label a lawful tenant a ‘squatter’, doorstep the the tenant together with the landlord, comprising a breach of quiet enjoyment – at the very least – and demand that the tenant tell them when she will leave the property. All the while failing to give the tenant any chance to reply and talking over and cutting out her attempts to respond. The behaviour of the anchors, being also presumably directed and partially scripted, can also be laid at the door of the ‘news organisation’ rather than the only other conclusion – that they are personally spectacularly dim and ill informed, which is never a good look for a ‘journalist’. In short, this is a ‘news organisation’ that was prepared to expend its resources in support of a landlord’s attempt to force the departure of her tenant without getting a court order through the public vilification of the tenant. And that does not bother to carry out even the most cursory checks of a) the facts and b) the law before broadcasting – on two separate occasions – their utterly wrong story.

For that reason, however unattractive a figure Ms Butler may be – and just watch that scene of her shouting at the tenant while in the house from the first video again if you need reminding of how cynical her behaviour has been – it has to be GMTV that end up on the naughty step. Other media organisations swallowed Ms Butler’s ‘squatter’ line whole. Only GMTV actually went round themselves to harrass the tenant on camera and demand she explain why she was still there. Broadcasting Standards Commission, anyone?

And for today’s game of offences, what kind of claims can we arguably see made against Ms Butler and/or GMTV?

Against Ms Butler:
Breach of quiet enjoyment, obviously.
I’d throw in breach of Protection From Harassment Act – two or more occurrences of behaviour that D knew or a reasonable person would consider likely to harass. Butler had clearly on her own account been to the property shouting and demanding entrance on a number of occasions, then turns up with the police, then with a GMTV crew who record her shouting at length at the tenant.

Protection from Eviction Act? – I’d have a shot at that. Acts likely to interfere with peace or comfort of occupier – even just telling the media the address and that the property was ‘squatted’ could have been enough, but turning up with GMTV so that she and the reporter could have a go at the tenant for not leaving? Pretty certain. Then follows ‘knows or has reasonable cause to believe that conduct is likely to cause the occupier to give up occupation..’. Ms Butler has said this was why she went to the media – to ‘speed the process up’.

Housing Act 1988 s.27? I’m a bit less sure about this. How far can the GMTV and other media be held to have acting been at Butler’s instigation or on her behalf, or even directly in consequence of her acts?

Against GMTV? – over to you all…

[Thanks to some of the posters here for links to videos etc.]

[Edit 20 August: that last link to a thread at the MSE forums has been deleted by the admins. Not clear why. There are a lot of annoyed people at the MSE forums discussing that deletion of the thread. The suggestion is that the PR person running Ms Butler's Facebook campaign page objected to being identified. [Edit 08/09/2010. Mr Dumore has contacted me. He asserts that the MSE thread was taken down because it contained personal information about it and, he alleges, threats to him]. That would be Jeremy Dunmore. Mr Dunmore’s twitter page gives as his personal website link a blog by the ‘Ascender Group’. Mr Dumore’s twitter account has many tweets about the Butler ‘campaign’. Mr Dunmore’s public entry on linkedin states he is “Founder and Managing Director of Ascender Group“:

we are an innovator in outsourced business development and marketing services structured around an SGO model our aim is to build long term strategic relationships with our clients and deliver bottom line growth enabling us to grow and prosper alongside our customers [sic]

Here is their thoroughly professional blog. Been a bit quiet lately, lately being 2010.

The company website at www.ascendergroup.co.uk (as formerly inked to from his twitter page and linkedin page) doesn’t exist, which is the kind of consummate attention to detail I look for in someone ‘interested in consulting offers and expertise requests’.]

[Edit 21/08/2010. I've filed a complaint with Ofcom on the GMTV reports - detail in the comments below. Any updates will be passed on].

Let us not get excited, this is a nothing of a case, but in these dog days of summer, where substantive case law is hard to come by, we have to take what we can get.

The Court of Appeal were confronted by a frankly bewildering application for permission by Mr Boatwright, who was facing an order committing him. This followed an application to enforce a penal notice on an order that he give vacant possession of the property he occupied to his ex-partner, Ms Boatwright (they were not married).

The history went something like this – although this was not the version Mr B presented to the Court – Mr & Ms B owned the property in joint names. Following their split, and Mr B remaining in occupation, Ms B issued a claim for a share of the property, including a claim for an order for sale. The shares of the property were not agreed and eventually the claim reached trial in October 2007. Mr B did not attend. An order was made that:

• The property be sold, for a price recommended by the appointed agents
• Mr B to deliver a key to Ms B’s solicitors immediately
• Mr B to give possession of the property by 17 November 2007 – a month later
• Mr B to remove his belongings and livestock – Ms B to do so if he failed
• Once sale had taken place, division to be decided by the Court

Mr B didn’t deliver up a key, then or subsequently. He applied to have the order set aside and was represented by Counsel at the subsequent hearing. The order was upheld, save for the date to give up possession which was extended to April 2008. Mr B appealed, The appeal was dismissed by the Circuit Judge.

And then – nothing happened. Mr B remained were he was. There was no penal notice attached to the order. So, in March 2009 an order that Mr B give up possession by 21 April 2009 was made, this time with penal notice. For some reason, this wasn’t served on Mr B in time, so on 4 August 2009 a further order that Mr B give up possession on 31 August 2009, again with penal notice, was made.

Faced with a penal notice, Mr B… did nothing and stayed put. Finally an application was made for committal. The order was made and Mr B somehow sought permission to appeal to the Court of Appeal, enforcement being stayed in the meantime.

What, exactly, was the recalcitrant Mr B appealing? It is hard to tell – both for us and, it appears, for Stanley Burnton LJ and Arden LJ as well.

It appears that Mr B submitted that the order requiring him to give up possession had been made in October 2007 in his absence. He had omitted to mention to set-aside application, at which he was represented, or the failed appeal application.

he has had his day in court, indeed more than one day in court, and the order for possession has now been outstanding for an exceptionally long period.

Mr B also raised various reasons for not complying with the order, but:

We have heard Mr Boatwright’s excuses and justifications for not complying with this order. In my judgment none of them justify the stance he has taken. There may be difficulties in complying with it. He has to find some other accommodation but the local authority is under a duty to house him if he is homeless. There are animals on the property apparently but arrangements could be made for them to be looked after. Ultimately if necessary there would have to be application to an animal shelter or to the Royal Society for the Prevention of Cruelty to Animals for them to look after the animals. I would hope that Mrs Boatwright would be willing to take some responsibility for the animals insofar as they belong to her or she has a responsibility for them. But this order has to be complied with and at the moment no excuse has been given for Mr Boatwright’s not complying with it.

And then

Mr Boatwright does not want to give up vacant possession because he would like to buy the property himself using an equity release scheme. He has told us that that is difficult because he does not know the size of Mrs Boatwright’s share of the property. I do not accept, however, that he could not have made an offer to Mrs Boatwright by now or, assuming that offer was rejected, not have made an application to the court so that the court could determine that outstanding issue and decide the amount of the shares so that the matter could have been taken forward. There has been plenty of time for all that since 2007.

However, while Mr B’s appeal was going absolutely nowhere, the Court was prepared to give him a further four days to comply with the order and give vacant possession, rather than immediate committal – as a practical step, based more on mercy than merit. Mr B had an operation listed for 13 July, so he would be given to 12 July to give vacant possession. Arden LJ’s advice to Mr B was

that he should go to the local authority, have the key cut, give vacant possession within the time allowed and in that way he will also be able to have the surgery on his hand which he needs to have on the date fixed next week rather than be committed to prison.

I’m not so sure about the Court’s assumption that Mr B would be assisted as homeless by the LA, but there may well be reasons why he would be in priority need that aren’t apparent from the judgment. What is, to some degree, astonishing, is the time to which Mr B could stretch his non-compliance in the face of a penal notice, presumably on the apparent reluctance by the other party to actually enforce it. Mr B may not think so, but he was more than a little lucky in the opportunity to comply given to him by the Court of Appeal.

Arden LJ, though, wasn’t about to let Mr B leave without telling him that he was pretty much destroying the rule of law as a foundation of our society:

We have the privilege of living in a society that respects the rule of law, and that depends on everybody understanding that if the court makes an order, that order is to be complied with promptly and fully unless the court orders otherwise. Mr Boatwright must remind himself of that. This is one of the privileges of the society within which we live, and without it we would none of us be able to enjoy the happy standard of life that we do in comparison with other countries.

We have no knowledge of whether Mr B did actually gather up his livestock and go, or whether he continues to undermine our happy standard of life, possibly from prison.

This is an interesting case from the District Registry in Birmingham. Although it actually concerns a commercial lease and therefore the Landlord and Tenant Act 1954 it also has relevance for possession actions under the Housing Act 1988 and 1985.

The claim concerns the redevelopment ground (set out in section 30(1)(f)) by which a landlord can oppose the grant of a new tenancy to the tenant on the basis that he intends to demolish or substantially reconstruct the premises. It is settled law that the word ‘intend’ in the legislation must be construed as actually meaning rather more than merely intend, it must constitute a firm and settled desire and also an actual ability to carry through that desire. The crucial aspect of this desire and ability is that the point at which a judgement is to be made is by way of reference to the date of the hearing (per Viscount Simmonds in Betty’s Cafes Limited v Phillips Furnishing Stores Limited [1959] AC 20 @ 35). Where there is a preliminary hearing to determine this issue then the relevant hearing is that preliminary hearing because if the landlord should fail to prove the point at this stage then the preliminary hearing would be the final disposal of the matter of the landlord’s ability to oppose the grant of a new tenancy (Dutch Oven Ltd v Egham Estate and Investment Co. Ltd [1968] 1 WLR 1483).

The wording and interpretation applied to the redevelopment provisions in relation to the 1954 Act is applied equally to the analogous provisions in Ground 6, Schedule 2, Housing Act 1988 and Ground 10, Schedule 2, Housing Act 1985 (see, for example, Woodfall para 24.055, footnote 6).

In this case Spring had served notices on Somerfield in relation to three supermarket sites which it had acquired with a view to redeveloping them seeking to oppose the grant of a new lease. It was, unsurprisingly, relying on the redevelopment grounds. There were some negotiations between the parties but Spring went into administration along the way. Somerfield, rather cleverly, applied for a summary judgement to dismiss the grounds of opposition which would have left the way clear for them to be granted a new tenancy.

This is a crucial issue because at the date of summary judgement it was unlikely that Spring was able to carry out its redevelopment plans. Equally, where a landlord opposes the grant of a new lease on redevelopment grounds it normally does so in the anticipation of having a substantial period of time to obtain the necessary evidence of the desire and ability to redevelop (eg. surveyors reports, architects drawings, planning consents) as the matter moves towards a trial. By using the summary judgement process a tenant could effectively hijack the process and force a timetable on the landlord which will leave them unable to produce the necessary evidence at a summary judgement hearing to be able to show a settled desire and ability to redevelop. Due to the novelty of this argument Somerfield was granted permission to appeal by the lower Court when it dismissed their summary judgement application. Apparently, a number of hearings in the County Courts are now on hold pending the outcome of this appeal.

In a carefully reasoned, and rather clever judgement, HHJ David Cooke drew a clear distinction between a preliminary hearing which was specifically intended to be a final hearing to determine whether the landlord could oppose the grant of a new tenancy and a summary judgement hearing which could only be a final hearing of the landlord’s ability to oppose a lease if it was assumed in advance that the landlord would fail to demonstrate his right to oppose a new lease.

13. If the question is, as Mr Wonnacott submits, to be considered by reference to the date of the summary judgment hearing, what can be meant by the expression “real prospect of succeeding” in CPR 24.2? Either the court would be asked to determine whether the evidence available at the date of the summary judgment hearing was sufficient to show that the necessary intention already existed, or it would be required to ask itself whether at some future trial date the evidence by then produced would be likely to be sufficient to establish the existence of the necessary intention at the date of the earlier summary judgment hearing.

14. If the hearing proceeded along the former lines, the court would not be considering a “prospect” at all but making a finding of fact as to whether the requisite intention existed or not. Evidence at a summary judgment hearing is normally in written form and considered without cross-examination, which would not be a suitable method of making determinations of contested fact.

15. If the hearing proceeded on the latter basis, assuming the landlord got over the “real prospect” hurdle there would have to be a further hearing at which the landlord’s ground of objection would still be in issue, and at which witnesses would be called and cross-examined, and the question would then arise whether the evidence was required to show that the necessary intention existed at the date of the summary judgment hearing, or the later hearing. In this respect, the position would be different from that considered in Dutch Oven, because the trial of the landlord’s ground of objection as a preliminary issue, as considered in that case, would mean that barring any appeal there could be no further hearing at which that ground was still in issue.

16. At any such further hearing, if the court were considering whether the necessary intention was shown to have existed at the previous summary judgment hearing, that would mean that the substantive issue for determination by the court had changed merely by virtue of the fact that an application (necessarily unsuccessful) had been made for summary judgment. If the court were instead to consider whether the evidence then showed that the necessary intention existed at the date of the later hearing, that would mean that the substantive question being tried was no longer that on which the landlord had been required to demonstrate a real prospect of success at the summary judgment hearing.

17. In my judgment, much the preferable view is that the date of the hearing at which the necessary intention must be shown to exist is always the date of the substantive trial of the landlord’s ground of objection. This accords with the passages from the judgment in Betty’s Cafes that I have set out above; it seems to me plain that in all those extracts what is envisaged is a hearing at which evidence is tested and facts found for the purpose of a final determination one way or the other of the landlord’s ground of opposition. It is consistent with the decision in Dutch Oven because the hearing at which the landlord’s ground of objection is determined as a preliminary issue is a hearing of that nature. A summary judgment hearing on the other hand is not; no determination is made of any facts in dispute, and it can only result in the substantive issue coming to an end if the decision goes one way; e.g. if it is the tenant’s application, if that application is successful.

Ultimately, the question to be considered is whether, at the date of the anticipated hearing, the landlord will have a reasonable prospect of demonstrating the requisite intention and not whether he can do so at the date of the summary judgement application hearing. Therefore the decision of the District Judge was upheld and the appeal dismissed.

This decision stops the use of a slightly unfair tactical device in commercial lease renewals which already see an excess of tactical litigation. How often this sort of device is to used in residential leases is open to debate as the redevelopment grounds are usually of limited efficacy anyway.

Brief facts – the assured tenant ran up rent arrears. A2 began possession proceedings. Before hearing, the Official Receiver made a “debt relief order” in respect of T, within the meaning of Part 7A of the Insolvency Act 1986, as amended. That order included the rent arrears.

At hearing of the possession claim the DJ made an SPO on terms of rent plus £5 pw towards the arrears, apparently, or impliedly, refusing to stay the proceedings as per s.251(3) Insolvency Act:

If on the effective date a creditor to whom a specified qualifying debt is owed has any such petition, action or other proceeding as mentioned in subsection (2)(b) pending in any court, the court may–
(a) stay the proceedings on the petition, action or other proceedings (as the case may be),
or
(b) allow them to continue on such terms as the court thinks fit.

On first appeal, the CJ dismissed the appeal on the grounds that a possession order based upon arrears of rent was not “a remedy in respect of the debt” within the meaning of section 251G(2).

T applied for permission to appeal, arguing that:

A2′s proceedings were for a “remedy in respect of the debt” within the meaning of section 251G(2), manifested by the fact that A2′s claim included a claim for the arrears of rent and District Judge Gatter’s order gave judgment against the applicant for such arrears. It is said that she was wrong in principle not to stay the proceedings under section 251G(3) and it is sought to be argued that the making of a suspended possession order, such as she made, was also a “remedy in respect of a debt”, the whole point of a suspended order being, Ms Bretherton [for G] submits, to compel the payment of the arrears. Ms Bretherton fairly recognises that it is said that there stands in the path of a successful appeal along these lines the decision of this court in Harlow District Council v Hall [2006] EWCA Civ 156, [2006] HLR 27, but she has advanced at least three submissions to me as to why she says that that case is in no way dispositive of the arguments that she wishes to deploy in what she says are the very different circumstances of the present case.

Permission to appeal granted as the arguments appeared:

to raise important questions of principle turning on the new regime of debt relief orders, upon which there is no direct authority in this court and in respect of which the material before me shows that there is considerable professional interest.

So, quite different grounds and some diofferent facts to those apparently at issue in North British Housing v Sharples. Could be a very interesting pairing on appeal.

This is the second permission to appeal hearing on this topic that we have reported recently, after Godfrey v A2 Dominion (on which we are still seeking more detail). Sadly the transcript of the judgment in this renewed application for permission hearing is also short of detail, but it does set out the issue on appeal. More information on this case would also be gratefully received if anyone from Glaisyers (or Jan Luba QC) are reading.

The issue is whether possession proceedings are a ‘remedy against the person or the property of the bankrupt in respect of a debt provable in the bankruptcy’ (s.258 Insolvency Act 1986) and thus barred under s.186(3)(a).

As far as I can gather, the tenant, S, had an assured tenancy. The tenant went bankrupt and, at some point after that,North British brought possession proceedings (presumably for rent arrears) and obtained a possession order. S appealed, presumably lost and applied for permission to appeal to the Court of Appeal. On the paper application, Patten LJ refused permission on the basis that:

the sense behind the judgments in Ezekiel v Orakpo [1977] QB 260 and Harlow District Council v Hall [2006] 1 WLR 2116 , together with the apparent policy of excluding an assured tenancy from the definition of the property comprised in the bankrupt’s estate in section 283 of the Insolvency Act 1986, give the present appeal somewhat low prospects of success.

On renewed application, S, via Jan Luba QC, argued that this case could be distinguished on its facts from both Ezekiel and Harlow v Hall as here the possession order was made after tenant’s bankruptcy order. Further, S argued:

that section 285(6) of the 1986 Act expressly provides that references in section 285 to the property or goods of a bankrupt are to any of his property or goods whether or not comprised in his estate.

This would be an issue of wider application – not just assured but also secure tenancies, now that these no longer end on possession order but on eviction.

We’ll watch for this appeal with interest. At a guess it will be joined with Godfrey v A2 Dominion, which appears to be similar. More on both cases as and when we get it.

Of interest to housing lawyers are the JCHR findings and the Government response on McCann and Kay v UK, Connors and implementation of s.318 Housing and Regeneration Act 2008, and Schedule 15 Housing and Regeneration Act 2008 in relation to the incompatibility in Morris v Westminster CC [2005] EWCA Civ 1184.

Summary Possession (McCann etc.)
The JCHR says

…[W]ithout action by the Government, domestic courts remain bound by the decisions of the House of Lords in McCann and Doherty, that express consideration of the proportionality of any interference with the right to respect for home in Article 8 ECHR is not required. We think it is predictable that this position will not find favour with the European Court of Human Rights. We consider that the Minister should be required to explain why the costs of resisting further litigation in the case of Kay v United Kingdom on this repeat issue are justified…

We are concerned that the issue of respect for people’s homes in summary possession cases remains unresolved, despite numerous decisions of the House of Lords and the European Court of Human Rights. We welcome the Government’s acknowledgment that should the European Court of Human Rights decide again, in the pending case of Kay v United Kingdom, that domestic law is incompatible with Article 8 ECHR, it will have to revisit the question of whether a remedial order or legislation is necessary to remove the breach identified by the Court. Unless the European Court of Human Rights departs entirely from its reasoning in the case of McCann, we consider that the Government will inevitably need to revisit the breach identified in that case. We question whether it would not have been more cost effective to reform the summary possession process rather than to pursue further domestic and European litigation. It would be prudent for the Government in the meantime to consider how the process might be reformed to give effect to the decision in McCann in the event that the decision in Kay goes against it, in order to avoid any further delay following the forthcoming decision in Kay v UK.

This seems entirely plausible. And the Government’s response? This is not a straightforward matter. There have been three House of Lords cases so far and the Supreme Court has heard Pinnock. It isn’t at all clear how much McCann turned on its own facts and how far proportionality is a ‘necessity’ criterion for Art 8.2. Plus Kay does not turn on personal circumstances where McCann does. So the Government will await the Courts’ decisions in Kay v UK and Pinnock and see.

Equal treatment of those on caravan sites
The JCHR says:

In view of this apparent yet further delay in remedying the incompatibility in this case, we have written to the Minister to ask whether the Government intends to introduce the statutory instrument necessary to bring section 318 into force before the end of this Parliament; if not why not; and to ask for full explanation of why a statutory instrument which would bring into force a piece of legislation which prevents future breaches of the Convention is not regarded as a priority claim on parliamentary time by the Government.

The Govt.’s response?

A decision on section 318 will be made shortly, in the context of a wider strategy being developed in relation to Gypsies and Travellers, and an announcement will be made in due course.

So, we are going to do something, but we’re not going to tell you what yet.

And finally, on the Morris incompatibility issue
THis is the issue of ineligible children or pregnant spouses for homeless priority – the JCHR was not wholly satisfied that the implementation of Schedule 15 Housing and Regeneration Act 2008, in force from 1 March 2009, was sufficient. Lest we forget, this provides that housing assistance by the way of a private sector tenancy will be sufficient for those who are only eligible by way of a previously ineligible child or pregnant spouse. The JCHR view on Schedule 15 is:

We have previously reported our view that although this measure may remove the direct cause of the incompatibility identified in these cases, the solution in Schedule 15 of the 2008 Act gives rise to a similar risk of incompatibility. Schedule 15 continues to make a distinction between those entitled to the full range of housing assistance in relation to priority need, and a lesser set of obligations which will be open to those whose priority need is based upon their relationship with a dependant who is subject to certain immigration controls. We note that a similar kind of distinction, albeit based on facts which arose prior to the enactment of Schedule 15, is currently being challenged at the European Court of Human Rights.

The Government disagrees, on the basis that Schedule 15 is wholly sufficient to address the incompatibility established in Morris. So nothing else will be done about it.

Overall then, and respectively: wait and see; we’ll do something but we’re not saying what; and not a problem.

I suspect that several strands of ongoing higher court litigation are mapped out right there. We will, of course, follow them up.

In essence, the end to “lifetime” tenancies seems to be a shift to “flexible tenure” which, in turn, looks like the grant of a tenancy for a fixed period (five or 10 years has been mooted), with a discretion to providers to extend after “regular reviews” and a potential to “force” council tenants to downsize.  That is the sum of our knowledge so far.  Apparently, the “problem” is that there are 1.8 million households on waiting lists (although, it might be added to that, that this signals the success of choice-based letting schemes to which there is no reference in the reports I’ve read).  This signals the return of housing tenure to the attempt during the early period of the inter-war recession to get households out of council housing who no longer had a need for it (see the interesting discussion in the excellent Peter Malpass book Housing and the Welfare State).  The reports I’ve read are short on knowledge about current housing law (woefully short to be frank), but the detail of this scheme, I suspect, will be pulled off the shelf from the delightful Caroline Flint’s time in office as housing minister (see the NL note).  In other words, this is unlikely to be “new” other than in the fact that it could become real.

The home swap scheme is trailed by Inside Housing as “a freedom pass” scheme that allows swaps to take place over a national database “… to make it easier for tenants to move to find work without having to leave social housing”, although Shapps also mentioned on the Today programme moves to enable care to be given to relatives.  Shapps trailed this in an “interview” with the Tory ConservativeHome Platform in November last year (hat tip to Francis for that).  New Labour was already developing regional and sub-regional schemes for this purpose and aimed to create a national scheme (see the allocations guidance at para 29), so there is nothing particularly innovative about this element at all (and as well).  Shapps also suggested that swaps might involve more than a simple two household swap, which sounds complex (ask Locata).

But it is worth questioning whether “mobility” for employment or other purposes is actually what tenants want.  Transfer schemes are already available and the whole point of the “housing options interview” is to offer alternatives, including alternative locations for housing.  Few social housing tenants take up these moves and/or transfers.  The reasons for this are reported to be about the identity of communities (something which, one presumes, is close to Cameron’s heart) on social housing estates.  The Impact Assessment of the allocations Code noted (at p 16) that

Significantly, immobility in the SRS may result not from the rigidity of the allocation system but from households’ rational response to the benefits of social networks that must often be forgone when moving. Tenants are not prevented from moving to areas with greater job opportunities, but rather choose not to sever family and other social ties just to improve their access to jobs (Fletcher, 2008). This is particularly the case where jobs are, or are perceived to be, low paid and insecure. When surveyed, social tenants do not feel their chances are impaired by their tenure (DWP, 2008). This implies allocation policies are not the main barriers to mobility in the social sector and consequently that the new guidance is unlikely to bring about much greater levels of mobility.

Labour mobility may be just one reason for moving, but the whole point of an allocation system based on choice (again, presumably, something close to the Tory heart) is that it responds to, well, choice, particularly when it is a rational choice based on a survey of the employment “opportunities” available.

Further, one of the key reasons for introducing security of tenure in 1980 was to link the right to buy to it.  How will the right to buy fare under the “flexible tenure” scheme?

Anyway, rant over – let’s wait and see the detail of the scheme.

Imagine, if you will, that, in 1967, Mr Steven Wall was placed with Mrs June Wall, who acted as his foster parent, by Sheffield CC. Whilst Steven was never adopted, he was clearly treated as the son of Mrs Wall and there was no-one else that could be said to have fulfilled that role.

In October 1986, Sheffield CC granted Mrs Wall a secure tenancy of a two-bed house, to be occupied by her and her “son”, Steven. He duly qualified as a solicitor and, after a short spell living and working in London, he returned to Sheffield in June 2002, to live with his mother. Sadly, 51 weeks after moving back home, his mother died of cancer. During those 51 weeks, Steven had cared for his mother. The council served NTQ and issued possession proceedings, contending that there was no-one entitled to succeed to the tenancy. Steven resisted the proceedings, arguing that he had succeeded.

In the county court, two issues arose. Firstly, was Steven a “member of the family” for the purposes of ss.87 and 113, Housing Act 1985. Perhaps surprisingly, foster children are not expressly within the scope of these sections. However, the Recorder dealt with this by finding that Sheffield were now estopped from arguing that Mr Wall was not a member of the family.

The second issue was more common – had Mr Wall resided with his mother for the period of 12 months ending with her death? The Recorder found against Mr Wall on this point.

Mr Wall successfully appealed to the Court of Appeal ([2006] EWCA Civ 495), which didn’t deal with the first issue, but criticised the approach taken by the Recorder to the second issue. The case was remitted for re-hearing.

However, Mr Wall hadn’t sought a stay of execution pending the appeal and, in early 2005 (prior to the appeal), the possession order was executed. The property was then re-let under a new secure tenancy to Mr & Mrs Ingham.

At the restored hearing, Sheffield accepted that Mr Wall had resided at the property for the relevant period. Their claim for possession was dismissed. That, however, was of very limited use to Mr Wall, since Mr & Mrs Ingham were now living at the property. He joined them and sought an order for possession as against them. That claim was also dismissed.

And, so, the mess ended up in the Court of Appeal. Again.

The first matter to consider was the potential succession rights of Mr Wall, or, more shortly, was he a “member of the family” for the purposes of ss.87 and 113, 1985 Act?

The Court was satisfied that, under the Rent Acts, he would have been. Brock v Wollams [1949] 2 KB 388 and, more recently, Fitzpatrick v Stirling HA Ltd [2001] 1 AC 27 were clear authority for the generous approach to be taken when construing that phrase. Context was, however, everything. In the context of the 1985 Act – unlike the Rent Acts – the statute itself defined the scope of “member of the family”. That definition was in s.113, 185 Act and, as already noted, does not refer to foster children. Section 113 was a complete code and Mr Wall did not come within it.

His only recourse was to rely on Art. 8, Sch. 1, Human Rights Act 1998. His Art. 8 rights were clearly “engaged”, but Parliament was clearly entitled to come to the view that only certain persons should be entitled to succeed, such that any violation of Art. 8(1) was justified under Art. 8(2).

So, the appeal failed at this stage. Mr Wall was not – and had never been – entitled to succeed to the tenancy. You may think that this is a rather harsh result, rather unpersuasively reasoned and one that – if right – really should have been dealt with in the 2006 appeal. That, however, is entirely a matter for you.

The court could, and perhaps, should, have stopped there. However, it went on to consider – without deciding – what would have happened if Mr Wall has succeeded.

Firstly, it was clear that the tenancy of his mother would have vested in him immediately. Secondly, the previously decided cases (Brent v Botu [2001] HLR 14; Hillgate House Ltd v Expert Clothing Services [1987] 1 EGLR 65) did not purport to set down any general rule, the answer had to come from the 1985 Act itself; in that regard, when Mr & Mrs Ingram went into possession, it appears that Mr Wall would have ceased to satisfy the tenant condition (s.81, 1985 Act), such that he lost his security of tenure and would be liable to eviction at the suit of Mr & Mrs Ingram, after service of an NTQ. A suggestion to the contrary in Osei-Bonsu v Wandsworth LBC [1999] 1 WLR 1011 was per incuriam.

However, the point did not arise in the present case and was not decided. A further point on costs was also dealt with, but need not concern us here.

[Edit: confirmed by Hardwicke Chambers as being Court of Appeal, permission by Rimer LJ]

What is at issue is whether a suspended possession order should be made when the rent arrears have been included in a debt relief order pursuant to the Insolvency Act.

The tenant apparently argued that “a ‘remedy in regard of debt’ in the terms of the Insolvency Act cannot include a suspended possession order as the purpose of an SPO is to enable payment of the arrears”. Further the existence of a debt relief order must be relevant to the question of whether it is reasonable to make a possession order in the first place. These were not arguments raised in Harlow v Hall, which should be distinguished on its own facts as:

• it is based on the concept of the tolerated trespasser which is no longer applicable
• the comments on a possession order post-bankruptcy were obiter
• Harlow v Hall pre-dated the rent arrears pre-action protocol

Obviously we like to know more about this case – transcript anyone?