Mago

The applicants in Mago held tenancies for life of flats within Bosnia-Herzegovina (with the exception of Mrs Mago, whose husband was the tenant) and they were compelled for varying reasons to leave their  homes following the outbreak of the war in Bosnia-Herzegovina in 1992. Security of these flats could be lost in a limited range of circumstances, including where the flat was left unoccupied for a continuous six month period or more. Once the tenants left, their properties were treated as abandoned by the authorities.

After the end of the war, the applicants made claims for restitution of their former homes. The Statute under which they made these claims contained an exception for those who served in foreign armed forces after 19/5/92. The majority of the applicants were members of the Yugoslav People’s Army and their claims and appeals were dismissed because they fell foul of this exception. The applicants petitioned the ECHR alleging breaches of Art 1 Protocol 1, Article 8 and Article 14.

The Court held that there had been no violation in three of the complaints as the applicants in question had been provided with alternative flats in Serbia and Montenegro. Although the deprivation of property rights might in normal circumstances lead to a finding of a violation, the exceptional circumstances of the case and the fact that the loss of the accommodation was the result of war and the dissolution of the former Federal Republic of Yugoslavia meant that the Respondent was under no obligation to make reparations under Art 1 Protocol 1 (para 104)

In Mrs Mago’s case, the Court held that the exception had been incorrectly applied as she was entitled on her divorce from Mr Mago to inherit the rights to the flat. Mrs Mago was not involved with any foreign forces and the Court accordingly held there had been a breach of Art 1 Protocol 1. The two remaining applicants (Radovic and Krstevski) had been members of the VJ forces and the Court accepted the argument that membership of certain armed groups depended largely on one’s ethnic origin. The Court held that the measures depriving the applicants of the right to restitution had the effect of treating individuals differently on ethnicity grounds and there could be no justification for deprivation in these circumstances. The Court found a violation of Art 1 of Protocol 1.

The overall award ranged from EUR 58000 to 90000.

Yordanova

This claim was brought by members of the Bulgarian Roma community, who inhabited vacant land in a district of Sofia from the 1960s onwards and constructed tenements (without the permission of the authorities) for between 200 and 300 people. The State sold the land occupied by the community to a private investor in 2006 and the Courts ordered the community’s expulsion on the grounds that they had no proprietary interest in the land, despite the time they had already lived there with the State’s acquiescence.

Nevertheless, the eviction was delayed pending a decision whether they should be rehoused and the applicants in the meantime petitioned the ECHR on the grounds of breaches of Art 1 Protocol 1, Articles 3, 8 and 14.

In deciding under Art 8 whether the authorities were pursuing a legitimate aim, the Court rejected the applicants’ argument that the State was motivated by a racist agenda and it accepted that the buildings were unlawfully built, that they were structurally unsafe and sub-standard and that there were inadequate sanitary facilities.

The relevant question for the Court was whether expulsion was necessary in a democratic society. The Court noted that alternative methods of dealing with the risks to health and safety had not been properly explored (for example legitimation of the community’s occupation of the land, improving sanitation and providing adequate re-housing). The Respondent was also criticised for describing the risk of homelessness as “irrelevant” when the principle of proportionality required due consideration to be given to the consequences of removal (para.126).

Furthermore, the Court recognised (para. 129) that “Such social groups, regardless of the ethnic origin of their members, may need assistance in order to be able effectively to enjoy the same rights as the majority population…..In the context of Article 8, in cases such as the present one, the applicants’ specificity as a social group and their needs must be one of the relevant factors in the proportionality assessment that the national authorities are under a duty to undertake.”

This factor provides an important qualification to the principle that there is no duty under Article 8 to be provided with a home and that “an obligation to secure shelter to particularly vulnerable individuals may flow from Article 8 of the Convention in exceptional cases”.

Accordingly, the Court held there to be a violation of Article 8 and it declared that either the 2005 order be repealed or it be suspended pending implementation of Convention-compliant measures (the Court having recognised that Art 8 gave no right to occupy land unlawfully in perpetuity). No damages were awarded.

Footnote

The ECHR has recently posed questions to the parties in the controversial night-time care case of McDonald v UK, namely:

1. Did the withdrawal of the night-time care service interfere with the applicant’s right to respect for her private life under Article 8 of the Convention? If so, has there been a violation of Article 8 of the Convention (a) from 17 October 2008 to 4 November 2009; and (b) from 4 November 2009 onwards?

2. Was the respondent under a positive obligation under Article 8 of the Convention to provide the applicant with a service which enabled her to live with dignity? If so, in withdrawing the night-time care service was it in breach of this obligation?

We’ll stay alert for any developments in this one.

The background was that a long standing secure tenant had lived in her flat with her three children. Her youngest son aged 19 had been involved in some offending including use and possession of cannabis and had some connection with firearms and ammunition found near the premises. B&D sought possession for both rent arrears and antisocial behaviour. On the first consideration, the court granted an ASBO against the younger son and adjourned the possession claim. Then when the matter came back on, the younger son had been involved in further offending and had breached the ASBO. However, just before the returned hearing, the Tenant had arranged for him to reside elsewhere and while she conceded that the grounds for possession were made out, she asserted that her son would continue to live elsewhere thereby ceasing the nuisance and sought a suspended order. The Judge appears to have had none of this, finding that the Tenant’s actions were too little too late and that he had no confidence that she could do anything to control her son’s escalating conduct. He duly made an outright possession order. She appealed on the basis that the Judge had failed to properly consider either the measures she had put in place to deal with the problems and her own personal circumstances.

The appeal was dismissed. There had been no error of law and the appeal was an attack on the exercise of discretion by the Judge. The Court of Appeal commented that while the judgment did not expressly state that the Judge had taken account of the measures put in place by the Tenant, it was clear from the judgment overall that he had  a very clear grasp of the case and it was material that he had adjourned the first hearing having impressed upon the Tenant how serious he found the antisocial behaviour to be. There were no grounds to interfere with the judgment.

This is a good example of the ever shortening judicial fuse on antisocial behaviour and may signal that advisers need to be giving much starker warnings much earlier to clients in this position.

But it caught my eye. To be fair, one cannot always tell from a short judgment of this kind exactly what happened, but it gives the impression that landlord and tenant law was, at best, misunderstood. So it seemed like a golden opportunity to set the record straight.

The defendant’s father and mother had lived in the property under an assured tenancy. Sadly, the father died. The mother succeeded under s.17 of the Housing Act 1988. Later on her son, the defendant, came to live with her and look after her. The mother died. The landlord eventually decided that the defendant would not be allowed to carry on living in the property and served a notice to quit which duly expired. They claimed possession on the basis that the son was a trespasser.

But why? Assured tenancies are not magic. They have some magical properties given to them by the Housing Act 1988 but underneath they are still perfectly normal tenancies which means they are an estate in land capable of being inherited.

This means that when the defendant’s mother died, her tenancy would pass under her will or intestacy. If the mother had not been a successor, the magic of s17 might have come in to play, but she was so it did not. From the facts of the case it seems overwhelmingly likely that the son was her heir. He would then inherit the tenancy and become the tenant.

As an aside there are some subtleties here which I am not about to delve in to, such as the nature of a heir’s rights under an intestacy and the role of the Public Trustee. Readers will be familiar with the and all the usual rules about giving notice after a tenant has died.

It seems likely that the defendant was a tenant of the property and, since he lived there, almost certainly an assured tenant. You cannot end an assured tenancy by giving notice to quit. It may be that the district judge inquired into this possibility and the matter was dealt with but not mentioned in the judgment, but it really ought to have been.

The right way to evict an heir in these circumstances is of course to use Ground 7 of Schedule 2.

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.

SQUASH have obtained a report on the likely costs of the proposal, highlighting the shortcomings of the MoJ’s costings. The research takes into account knock on costs to other Departments and to Local Authorities. It outlines a range of scenarios that may result from the criminalisation and estimates the likely costs at between £316 million and £790 million.

The Guardian has further details here.

Given that LASPO is intended to be a costs savings bill, cutting some £350 million from civil legal aid, it seems somewhat reckless to tack on a largely unnecessary measure, (which although promoted as protecting homeowners will do nothing of the sort), on the basis of limited and faulty costings. If the SQUASH figures are anything like accurate, the cost savings of LASPO are, at the least, wiped out.

Section 335A(3) provides that, where the trustee makes an application for an order for sale in respect of property held by the bankrupt under a trust of land, and does so after the first year of the bankruptcy, “… the court shall assume, unless the circumstances of the case are exceptional, that the interests of the bankrupt’s creditors outweigh all other considerations”.  It is designed to retain the kind of fervour for bankrutpcy trustees which was exemplified by the extremely unfortunate judgment of Nourse LJ in Re Citro [1991] Ch 142 (homelessness, moving, changing schools are not exception but “the melancholy consequences of debt and improvidence with which every civilised society has been familiar”).

The question comes down to whether the exceptional circumstances test works with the proportionality test.  There was full argument on this issue in Ford v Alexander [2012] EWHC 266 (Ch), which includes discussion of the horizontal application of Article 8 to such cases.  Although Peter Smith J refused permission to appeal, which means it’s non-binding, there are some interesting observations.  The Fords bankruptcy involved debts of around £262,500.  Their main asset was a studio flat worth around £40-55k.  The Fords resisted the trustee’s inevitable application for an order for sale with evidence of moderate depression as a result of their position, their non-priority need status for homelessness, and “They would also have difficult finding private rental accommodation due to their need to house their fish and terrapins …”  I have to say that this was hardly the most compelling evidence, but their counsel argued that section 335A needed to be read in concert with Article 8, post-Pinnock.  The district judge who heard the case disagreed that Article 8 required her to operate a different exercise from the wording of s 335A but also, as an alternative, held that it would not be disproportionate to order a sale on the facts.  And there was another problem: the Fords were seeking to resist the order not just for a limited period but indefinitely (or, as SJM and I now know, “permanently”).  Both the District Judge and Peter Smith J found it inconceivable on the facts before them to find that it was proportionate permanently to deprive the crerditors of any prospect of ever having any realisation out of the bankruptcy.  That was on the facts of this case and Peter Smith J concludes his analysis with the observation that “There may be a circumstances where it is proportionate permanently to deprive a Trustee but that is not the position in the present case” (at [39]).

He then discussed whether Article 8 had any relevant at all.  He recited paras [4] and [50] from Pinnock and there is a lengthy citation from Zehentner v Austria (noting that it was referred to in Pinnock “not on the point under consideration”), and taking the view that the circumstances of that case “were extremely unusual”.  Further, s 335A(2) and (d) “… provide a necessary balance as between the rights of creditors and the respect for privacy and the home of the debtor.  That balance serves the legitimate aim of protecting the rights and freedoms of others.  I am therefore of the opinion that the requirements of section 335 A satisfy the test of being necessary in a democratic society and are thus proportionate …  This was the conclusion in the pre Pinnock bankruptcy cases and I see no basis for coming to a different conclusion”.  I have to say that I am in almost entire disagreement with that comment.

What was not discussed was the role of “exceptionality” in Pinnock and its crossover with “exceptional circumstances”.  One might be able to have quite an interesting play there.

This Order is the Court’s response to a unilateral declaration made by the UK government on 8/11/11 accepting that Mr Dixon had not had the benefit of a proportionality exercise in line with the principles set out in McCann, Pinnock and Powell and that the High Court’s obiter findings on proportionality were insufficient to guarantee Mr Dixon’s Article 8 rights. The UK therefore offered £3000 by way of just satisfaction, costs and expenses.

Despite Mr Dixon’s argument that had Art 8 been applied to his case in a substantive sense, no possession order would have been made, the Court found the offer of compensation to be in line with its findings in previous cases dealing with Article 8 and proportionality and it declared continuation of the application to be unjustified.

To my knowledge, there are no other applications pending in the ECHR on the issue of the compatibility of the Hammersmith v Monk rule with Article 8 but we will remain alert for the next case in the domestic courts.

It’s an appeal against a s.21 possession order made under the accelerated procedure in which Ms Dainter argues that she should have been allowed to raise an art.8 defence. The DJ held that there was no need to consider personal circumstances / proportionality but granted permission to appeal. HHJ McKenna, noting that the interaction between art.8 and the private sector had been left open in Pinnock, has sent the case to the CA for them to have a go with.

More details as and when we get them.

Courtesy of the always excellent ECHR blog, comes an interesting Strasbourg decision, particularly in relation to the question of just satisfaction. It has, regrettably, taken me ages to write this up. Any students who have had to write essays about it in the meantime clearly have sadistic tutors.

The facts of the case bear some similarity with Tuleshov v Russia, but there are a few differences and what is quite interesting about this case is what the ECtHR does about just satisfaction.

The basic facts are that Ms Gladysheva was a bona fide purchaser of a flat in Moscow. The previous owner had bought the flat from someone referred to as Ms Ye, who had, in turn, acquired the title to the flat from the City of Moscow through a privatisation scheme (which appears to be not a million miles away from right to buy).

Unfortunately for Ms Gladysheva, there appear to have been some shady goings on, err, going on when Ms Ye acquired the flat, which all started to be investigated after Ms Gladysheva had bought it. In July 2009 a court in Russia found that the privatisation had been fraudulent. Applying domestic law the court ordered the return of the flat to the City and Ms Gladysheva’s eviction. She was not entitled to compensation or the offer of alternative accommodation.

Although the Deputy Prosecutor General and the Moscow City Ombudsman have both intervened in support of Ms Gladysheva, that decision stood. At the time that her case came to Strasbourg she had not yet been evicted, but considered that eviction was imminent.

She brought the case to Strasbourg in reliance on A1P1 (which provides for protection of property) and Article 8 (which provides for protection of a home).

The ECtHR dealt first with A1P1. Russia argued that it did not apply as Ms Gladysheva’s dispute was really with the person who sold her the flat. The ECtHR said that this argument was “misguided”. It was the Housing Department that had brought the case to recover the flat, so the dispute was clearly between the applicant and a municipal body. It cannot be said that it was a purely private dispute between the City and Ms Gladysheva as the alleged frauds that had taken the flat out of the City’s ownership involved residential registration, social tenancies and privatisation.

When considering the merits of the A1P1 claim, the ECtHR held that the interference with Ms Gladysheva’s rights was not proportionate. Much of the blame had to be attached to the failure of the authorities to prevent the fraudulent privatisation of the flat. In addition, Ms Gladysheva was being “stripped of ownership without compensation, and … [had] no prospect of receiving replacement housing from the State.” The court went on to note that “mistakes or errors of the State authorities should serve to the benefit of the persons affected, especially where no other conflicting private interest is at stake. In other words, the risk of any mistake made by the State authority must be borne by the State and the errors must not be remedied at the expense of the individual concerned … It therefore concludes that dispossessing her of her flat placed an excessive individual burden on her, and that the public interest was not sufficient justification for doing so.”

Therefore A1P1 had been breached. For pretty much the same reasons there had also been a breach of Art 8. In the court’s analysis of Art 8 it is interesting that some significance appears to be attached to the fact that “no goodwill had been shown by the Moscow Housing Department in that it would not provide her with permanent, or even temporary, accommodation when she had to move out. The Government’s suggestion that the applicant move in with her parents aside, the authorities made it clear that they would not contribute to a solution of her housing need.”

Where this case does get interesting is what happened next. Ms Gladysheva claimed an amount of money for non-pecuniary damage and also an amount to allow her to purchase another flat. Russia resisted both of these and argued alternatively for a lower award in respect of the loss of the flat. However, the ECtHR did something a bit different. At [106] the court said that

having due regard to its findings in the instant case, and in particular having noted the absence of a competing third-party interest or other obstacle to the restitution of the applicant’s ownership, the Court considers that the most appropriate form of redress would be to restore the applicant’s title to the flat and to reverse the order for her eviction. Thus, the applicant would be put as far as possible in a situation equivalent to the one in which she would have been had there not been a breach of Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention.

In other words, she gets to keep the flat. While not a new development in relation to A1P1 (Bulgaria has been on the receiving end of a couple of such decisions), it is interesting to see this being applied to residential property.

In essence, what happened was that Ms Hyacienth, a single mother with two young children, took an introductory tenancy of a Soutwark property in June 2008.  Housing benefit clawed back an overpayment, which gave rise to rent arrears.  She also had a load of other debts with the bailiffs knocking at her door, taking furniture.  Southwark have a policy for early intervention, assessment of vulnerability, provision of advice and benefits/debts/budgeting.  They also have a policy that agreements for rent arrears should only be made during the first six months of an IT, and there should be a six month arrear free period before the 12 month duration of the IT expires.  Arrears not surprisingly arose quite early on and Southwark did make efforts to contact Ms Hyacienth but to no avail.  Then in December, there was contact and this was, as the HHJ put it, “the pivotal moment”.  She made promises as to payment of the arrears, the HB clawback was identified as a problem, and she was having real problems managing her finances and making promises.  She’s told (inaccurately, by my calculation) in early December that as the tenancy was more than six months in, Southwark wouldn’t make an agreement; then, later that month, they do make an agreement for the arrears to be cleared by 04 January; but she calls back the same day to say that she won’t be able to do so, to be told that she must do so.  After that period there was nothing.

Southwark then run through the numbers to end the tenancy – they served notice on 06 March; a review is carried out which confirms the decision to proceed; the claim is issued; and on 25 September, the District Judge makes a possession order at a hearing at which Ms Hyacienth attends unrepresented.  She does not raise an Article 8 defence – proportionality – or gateway (b) defence at this hearing (not surprisingly).  She then circuitously arrived at Mr Thomas’ door.

From these unpropitious facts, Mr Thomas and her counsel, Alice Hilken, constructed the successful gateway (b)/proportionality defence.  Quite how they did so successfully, I’m still not sure.  They also managed to get the possession claim dismissed leaving Ms Hyacienth a secure tenant.

Well, I do kind of know how they did so.  Basically, it is absolutely crystal clear that Southwark did not follow their policies for vulnerable persons, such as early intervention and advice etc.  As the HHJ put it, by the time of the review, Ms Hyacienth was faced with an “uncompromising approach” by the bureaucracy – “no agreement because you are 6 months into your tenancy and you must pay all the arrears.  This was in no sense tailored to her situation, it was not helping her in a constructive way and … she was not directed to agencies that might assist her”.  The reviewers nor anyone in the council had considered their policies and procedures.  So, all of this was really bad practice and procedurally irregular – and the HHJ clearly has Barber v Croydon LBC [2010] EWCA Civ 51 in mind.

Southwark did not help themselves either.  They failed to file the McLellan witness statement explaining how they operated the review process with the original claim, which the HHJ seems to have regarded as a requirement, not just good practice, as it enables the occupier to make a decision as to whether to raise a public law defence.

But none of this was raised before the DJ at the possession hearing, and so the basis for the appeal is unclear, certainly if it is based on proportionality.  The clear guidance given by the SC in Pinnock and Powell is that it is for the occupier to raise the defence.  The HHJ says that the absence of the McLellan witness statement meant that the Judge felt bound to make a possession order although enquiry was made as to the review process.  But it all seems a little late to make these arguments on appeal.  This point was clearly made to the HHJ (as was the dicta in Powell about the purpose of the introductory tenancy regime, requiring a high standard of behaviour, and all that guff) and who does not really comment on it.   Don’t get me wrong – it’s fantastic to see this kind of success – but my instinct would have been to apply to set the original judgment aside as opposed to appeal it.  That instinct wouldn’t have yielded the same outcome for Ms Hyacienth though (- note to self: be bold, be brave!).

Then, there is the actual outcome itself: claim dismissed.  The HHJ uses Eastlands Homes v Whyte [2010] EWHC 695 (QB), at [65], as the basis for this outcome.  There, HHJ Holman applies his position developed from his judgment in Pinnock (at first instance) that the possession claim must be dismissed in the face of a successful public law defence (citing also Barber and Pinnock in the CA).  This seems to me to be a rather touchy issue and underdeveloped (no doubt principally because there are so few successful cases), but a successful public law procedural irregularity claim would lead to a quashing order requiring “the decision” (the review, the decision to issue the claim,  or the decision to proceed with the claim to hearing/appeal?) to be made again (having said that, though, the HHJ, with a final flourish, declares Southwark’s decision also to be Wednesbury unreasonable for not following its own guidance, which suggests that the claim dismissed remedy is proper).  That was Southwark’s submission here and I’m afraid I’ve got some (limited) empathy with it.  The type of tenancy seems important when remedy is being considered – if, as in Barber, the tenancy is non-secure, one can see why “claim dismissed” is appropriate because the public authority has to go and make the decision again; but, where the tenancy is introductory, that outcome has rather different effects as the authority can’t make that decision again as the tenancy is likely to be secure by that time.   The HHJ, however, viewed it “as a matter of practicality” and “there is no going back or ascertaining what would have happened if appropriate help and guidance had been given earlier.  Nor what the review panel would have decided if they had conducted a more thorough review”. Hmm.