Tag Archive for 'possession claims'

Carry me out feet first

Published
by
NL
on 21/03/2009
in Housing law - All, Possession and secure-tenancy
. 0 Comments

Second of the Ground 16 cases is London Borough of Brent v John Hodson [2009] EWHC 566 (QB) [Not on Bailli yet]. This was decided in January but only released in the last day or so. This is an appeal to the High Court on issues of availability of suitable accommodation for determining reasonableness of a possession order.

Mr Hodson was the successor tenant to his father. The property was a two bedroom flat and Mr Hodson, aged 63, now lived there alone. Mr Hodson had lived in the flat with his family between 1968 and the late 1980s and had moved back in in about 2000. Mr Hodson’s father died and March 2007 and Brent brought Ground 16 possession proceedings. Mr Hodson did not want to leave, announcing ‘they would have to carry him out feet first’.

At trial, in July 2008, the Circuit Judge made an order for possession, but did not determine the date of possession. Brent had only that day put forward three suggestions of alternative accommodation and it was not known when any of them would be available for Mr Hodson.

Mr Hodson shortly after accepted one of the flats, without prejudice to his appeal, and at a further hearing a date of possession was ordered of 12 September 2008.

The appeal was on four grounds:

1. The question whether the alternative accommodation offered by the landlord is suitable for the tenant is a question that has to be decided before the court can reach a conclusion on whether it is reasonable to make a possession order. In this case the judge decided it was reasonable to make the order and then turned to consider what sort of accommodation would be suitable for Mr Hodson. What if no suitable accommodation had then been offered?
2. The Court has to be satisfied that suitable accommodation is available when the possession order will take effect to make the possession order. This was not the case on 23 July when the Order was made. In fact Brent had not offered any accommodation to Mr Hodson by that date.
3. As well as the suitability of the specific accommodation, the court should take into account factors relevant to that accommodation in deciding reasonableness; such as character of the property, locale, environment, the tenant’s objection to moving, the loss of space and the forced eviction.
4. The judge had erred in taking the view that moving house at age 62 was something people commonly did when addressing the trauma of a move for Mr Hodson.

Mr Justice Keith held:

On 1, It is important not to put too much stress on the structure of an ex tempore judgment delivered on the day. The mere fact that the judge had expressed his view on suitability of accomodation after he had expressed his view that it was reasonable to make a possession order did not necessarily mean that he did not consider suitability in deciding reasonableness. In fact, the judge began by considering the ground 16 factors, then went on to consider the s.84(2)(c) reasonableness issue. In then turning to suitability, he was giving the reasons for his conclusion.

On 2. the date when suitable accommodation had to be available is a later date – the date of possession – than the date when the order is made. Dyson LJ in Wandsworth v Randall [2008] 3 All ER 393 says ‘there is no requirement that an offer of accommodation shall have been made before the hearing. The requirement is that suitable accommodation will be available’.

In the present case, the Judge had to decide whether the sort of accommodation Brent were prepared to offer was suitable and whether it would be available when the order took effect. The Judge had found that the sort of accommodation was suitable and that the accommodation would be available when the order took effect, but as the judge did not know when the accommodation would be available, he did not decide when the order would take effect. His finding was that suitable accommodation would be available to Mr Hodson when the order took effect, whenever that was going to be.

On 3. as a provisional view, factors like locale, proximity to good shops and so on would be factors to consider going to suitability, as the six factors set out in para 2 of Part IV Sched 2 HA 1985 were not exclusive. But Mr Hodson could have raised this at the later hearing and asked the judge not to set a date for possession as it would not have been reasonable to give effect to the earlier order. He had not done so.

On 4. The judge was bound to take Mr Hodson’s age into effect, but the weight the judge had given his words about people selling up and moving to the seaside should not be exaggereated. He did not say Mr Hodson was of the group who choose to move at this age and he knew how reluctant Mr Hodson was to leave the flat. Even if the judge had wrongly assumed that Mr Hodson’s likely trauma was no different from a person selling up to move, it was clear from the rest of the judgment that he would have reached the same conclusion even if corrected on this point.

Appeal dismissed – although given that the flat offered had now been allocated to someone else, the date of possession was to be deferred until a further county court hearing to assess whether suitable accommodation will be available to Mr Hodson and at what date.

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Appealing reasonableness decisions

Published
by
NL
on 21/03/2009
in FLW case note, Housing law - All, Possession and secure-tenancy
. 0 Comments

This is the first of two appeals on Ground 16 possession claims which came out today, both concerning whether it was reasonable to make a possession order. The second will be up later on.

Bracknell Forest Borough Council v Harry Green & Denise Green [2009] EWCA Civ 238 centred on the consideration of the availability of suitable accommodation as a factor in considering reasonableness. It is also, and sorry to spoil any dramatic tension, a textbook example of the Court of Appeal refusing to take issue with the lower court’s exercise of discretion where there is an imprecise legal standard unless the lower judge acted ‘under an error of principle’ or the decision ‘was obviously wrong’.

The history was as follows..

The property, a semi-detached 3 bed house was first tenanted by the respondent’s father in 1958, with his wife and family. The late Mrs Green had a new tenancy on the death of the father in 1969. Harry Green had been born in the house in 1958 and lived there ever since. His sister was likewise born in the house and also, apart from a period between 1975-84 had also lived at the house ever since. Mrs Green died in 2005 and Harry succeeded to the secure tenancy.

The Council began possession proceedings under Ground 16 in Feb 2006 (within time). In front of the Recorder, the possession claim was dismissed in january 2008 on the basis that it was not reasonable to make an order for possession, although the alternative accommodation offered was suitable.

The Council appealed, although the property was transferred to an RSL in the interim, on broadly similar terms. An application to be substituted as claimant was a secondary and in the event unnecessary part of the appeal.

Ground 16 requires that the Court be satisfied both that it is reasonable to make a possession order and that suitable accommodation is available. There are prescribed factors to be considered in terms of reasonableness, but it was common ground that these are not exclusive. Ground 16 provides that:

The accommodation afforded by the dwelling-house is more extensive than is reasonably required by the tenant and –

(a) the tenancy is vested in the tenant by virtue of section 89 (succession to periodic tenancy), the tenant being qualified to succeed by virtue of section 87(b) (members of family other than spouse), and

(b) notice of the proceedings for possession was served under section 83 (or, where no such notice was served, the proceedings for possession were begun) more than six months but less than twelve months after the date of the previous tenant’s death.

The matters to be taken into account by the court in determining whether it is reasonable to make an order on this ground include-
(a) the age of the tenant,
(b) the period during which the tenant has occupied the dwelling-house as his only or principal home; and
(c) any financial or other support given by the tenant to the previous tenant.

The recorder’s judgment found that the exceptional circumstances, in which Harry Green and, largely, his sister, had lived in the same property since they were born, were highly emotionally attached to that specific property and would be very likely to never be able to settle anywhere else meant that it was not reasonable to make a possession order, while recognising the clear force of the council’s argument on pressures on housing stock. For the purposes of the appeal, the key part of the judgment read as follows:

4.5 The issue of suitable alternative accommodation was much discussed at the hearing. Four properties were offered to Harry Green and his sister as alternative and suitable accommodations. They declined to see any of them. I saw photographs of them and I was given the dimensions of each of them. I believe “Red Rose” is suitable alternative accommodation. This bungalow is a two bedroom property with a living room and garden. Although inferior in almost every way to the Property it is nevertheless in my opinion suitable. However there is no point in discussing this issue until first the issue of reasonableness has been decided. Plainly if it is unreasonable to make a possession order it is immaterial whether suitable alternative accommodation is available.

The Council’s appeal was on the grounds that:
1. The Recorder had failed to give sufficient weight to the factors making it reasonable to give possession. Following Enfield LBC v French [1984] 17 HLR 211 and Manchester CC v Benjamin [2008] EWCA Civ 189, the waiting list and the importance of better use of housing stock should carry sufficient weight for a PO.

2. The recorder had failed to take availability of suitable accommodation into account as a factor in a reasonableness decision. The legal misdirection at the end of the paragraph above was to the effect that suitability wouldn’t even be considered until reasonableness had been dealt with. Cumming v Danson [1942] 2 All ER 653 and Enfield LBC v French cited.

The Court of Appeal in Mummery LJ’s sole judgment, found the Recorder’s judgment difficult to appeal – the court of appeal should not interfere with the exercise of discretion simply because another decision could also be reached on the same facts. Interference should only be on the basis that there was an error of principle or mistake in law or the decision was plainly wrong. The Council’s appeal was based in part on a complaint that the Recorder failed to explain how the balancing act had been carried out and how the personal circumstances of the Greens outweighed the combined facts of underoccupation, the refusal of offers of suitable alternative accommodation and the pressures of the waiting list. However, where the nature of the question to be decided in the lower court affects the approach of the court of appeal to such criticisms.

Lord Hoffmann in Biogen v Medeva plc [1997] RPC1 points out that specific findings of fact, even by a most meticulous judge ‘are inherently an incomplete statement of the impression that was made upon him by the primary evidence’. Such an analysis also applies to appeals on the reasonableness of making a possesison order, which require the lower court to apply ‘an imprecise legal standard to the overall evaluation of all the circumstances relevant’. See also Designers Guild (Textiles) Ltd v Russell Williams (textiles) Ltd [2000] 1 WLR 2416. On this basis the Court of Appeal would be slow to upset the Recorder’s evaluation absent error of principle or obvious wrongness.

In the present case, despite the phrasing in the passage from the judgment set out above, it was clear from the judgment as a whole that the Recorder had considered the availability of suitable accommodation throughout, and gave it proper consideration before refusing the possession order. Although suitable alternative accommodation is not mentioned as mandatory factor to be considered in deciding reasonableness, it is accepted that it is a factor. The structure of Ground 16 or s.84(2)(c) does not amount to a sequence of separate decisions, first reasonableness, then suitability. And here, suitability had been considered in reaching the decision.

The Council’s complaint was really that the Recorder did not treat the offer of suitable accommodation as decisive in its favour. But the 1985 Act clearly contemplates that personal circumstances may outweigh the factors for possession. Mr Green’s length of occupation, his age and the fact that he remained living in the house in which he was born, and the destablising effects on the Greens of any eviction were factors the recorder was entitled to consider and the Court could appreciate why the recorder had reached his decision.

There was no error in law or of principle and no obvious wrongness. Appeal dismissed.

We’ve noted previous cases where the Court of Appeal has refused to interfere in the lower court’s findings on reasonableness of making a possession order. What is interesting in this case is that the reluctance is formalised and given a basis in precedent case law on evaluation of facts in the application of an imprecise legal standard. In practice, I imagine this judgment will be raised by respondent in virtually any appeal of a lower court decision on reasonableness from here on. Any such decision will need to be clearly wrong, or contain error of law, to be appealed, as ‘merely having another go at a fact based issue’ is likely to get short shrift. To be fair to the Council here, they did try to turn it into an issue of law by focussing on one paragraph of the Recorder’s judgment, but that fell when considered against the judgment as a whole.

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Possessions up, down and about the same

Published
by
NL
on 22/02/2009
in Housing law - All, Mortgage possession and Possession
. 0 Comments

The quarterly statistics for quarter 4 2008 on possession claims and orders are out [pdf]. Unsurprisingly, it is the mortgage repossession figures from the CML that got the headlines, being up significantly on 2007 – albeit by less than initially forecast by the CML. The mortgage possession claims issued actually dropped in quarter 4 2008 (although they had been at 38-39,000 for each of the previous three quarters of 2008, as opposed to 33-36,000 per quarter in 2007).

Meanwhile, landlord possessions are pretty static, or even slightly down. On the seasonally adjusted figures:

Mortgage possession
Claims brought
4.2007 – 36,444
4.2008 – 26,008

Order made
4.2007 – 25,555
4.2008 – 29,095
46% of orders suspended.

Possession taken (according to CML on first charge claims)
2007 – 26,200
2008 – 40,000 (Est)

Landlord possessions
Claims brought
4.2007 – 36,343 (6,344 via Accelerated Procedure)
4.2008 – 35,162 (5,049 via Accelerated Procedure)

Possession orders
4.2007 – 27,752 (5,006 via Accelerated Procedure)
4.2008 – 27,344 (4,068 via Accelerated Procedure)
41% of possession orders were suspended

The figures for the individual courts are immensely variable, but noticeably, the inner city courts generally saw rises.

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Evictions and Proportionality

Published
by
chief
on 09/02/2009
in FLW case note, Housing law - All and Possession
. 1 Comment

We’re a bit late with this one, and it is arguably quite a biggie (hat tip to Niki Goss who first pointed it out, to me at least, in the comments here).

Anyway, Cosic v Croatia is a decision of the European Court of Human Rights that should be of interest as both Connors and McCann are referred to as the Court reaches its conclusion that a possession order was a disproportionate interference with the Applicant’s Art 8 rights, because she was not given the possibility of having the proportionality and reasonableness of it tested.  In the process the Court gives what might be construed as “guidance” to the House of Lords.

Mrs Ćosić began working as a teacher in Croatia in 1966.  In 1970 she gave birth to a son.  As a single mother she was granted a specially protected tenancy.  In 1984 she was transferred to a school in a different town.  The new school provided her with a flat that the school had temporarily leased from the Yugoslav People’s Army.  This lease expired in 1990.  In 1991 the State took control of all of the YPA’s property and became the new owner of the flat.  Several requests by the school to have the lease extended were ignored.  However, Mrs Ćosić remained living in the flat and paid rent to the State each month.  This arrangement seemed to be working fine until 1999 when the State brought a civil action seeking her eviction.  In 2002 the Municipal Court, while noting her “unenviable position” (i.e. she had nowhere else to go), ordered Mrs Ćosić to leave the flat within 15 days.  She then went to the ECtHR arguing breaches of Arts 8, 6 and 14.  While her Arts 6 and 14 claims were declared inadmissible, she had greater success with the Art 8 claim.

The ECtHR quickly dismissed Croatia’s argument that there hadn’t been any interference with Mrs Ćosić’s rights because the eviction judgment had not yet been acted on [18].  The Court accepted that the interference was in accordance with Croatia’s domestic law and that it pursued a legitimate aim of protecting the rights of the owner of the property.

The question then became whether the interference was proportionate and necessary in a democratic society.  After setting out [81]-[83] of Connors v UK, the Court then noted that the domestic court had not considered the proportionality of the action being taken.  It then said, at [21] (emphasis added):

[T]he guarantees of the Convention require that the interference with an applicant’s right to respect for her home be not only based on the law but also be proportionate under paragraph 2 of Article 8 to the legitimate aim pursued, regard being had to the particular circumstances of the case.

At [22] the Court echoed McCann (although note the slight difference in wording):

In this connection the Court reiterates that the loss of one’s home is a most extreme form of interference with the right to respect for the home. Any person at risk of an interference of this magnitude should in principle be able to have the proportionality and reasonableness of the measure determined by an independent tribunal in the light of the relevant principles under Article 8 of the Convention, notwithstanding that, under domestic law, his or her right of occupation has come to an end.

Due to the absence of adequate procedural safeguards Mrs Ćosić’s Art 8 rights had been breached and she was awarded 2,000 Euro for non-pecuniary damages.

While there is little here from the ECtHR that is new, it is surely significant that, so soon after the House of Lords decision in Doherty, the Court has repeated in clear terms that Art 8 requires the proportionality of a possession claim to be tested, having regard to the personal circumstances of someone who is at risk of losing their home.  As the ECtHR has made clear previously, judicial review just doesn’t cut it.  I’ll leave you to consider what this might mean for mandatory grounds of possession.

The net result?  Surely there now has to be either a legislative solution or a seven-strong House of Lords decision to sort this all out.  Doesn’t there?

Selected previous posts on Article 8 and possession:

  1. Human rights and possession claims after Kay v Lambeth
  2. Possession and human rights (McCann)
  3. Wondering about McCann
  4. Notes on Doherty v Birmingham CC
  5. Second time around (Truro Diocesan Board of Finance v Foley)
  6. A post-Doherty appeal
  7. Ask and ye shall receive (Dixon v Wandsworth LBC)
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Pre-emptive possession orders

Published
by
NL
on 26/08/2008
in FLW case note, Housing law - All, Licences and occupiers and Possession
. 5 Comments

Secretary of State for the Environment Food & Rural Affairs v Meier & Ors [2008] EWCA Civ 903 was a case concerning travellers encamped on Forestry Commission land. Some of the travellers had previously camped on a nearby patch of Forestry Commission land until a possession order was obtained. The Forestry Commission (or rather the Sec of State, the owner of the land) applied for:

  1. A possession order in respect of the patch of land occupied.
  2. A possession order for other nearby areas of Forestry Commission land that the travellers might move to.
  3. An injunction preventing the travellers from entering upon the land they currently occupied and the other nearby areas.

At the County Court, possession order 1 was granted. But the ‘prospective’ possession order and injunction were refused, on the grounds that the recorder had discretion and exercised it against the orders because a prospective possession order and injunction clashed with the recommendations made to local authorities and others, including, inter alia, the Forestry Commission in the then ODPM’s Guidance on Managing Unauthorised Camping, 2004, which suggests that, while there are insufficient authorised sites, and there would be locations where encampment would not be acceptable under any circumstances, each location has to be considered on its merits against criteria such as health and safety and serious environmental damage and land use (para 11-12). A prospective possession order, which would subject anyone who entered on the parcels of land to eviction, was, the recorder found, not in accordance with the guidance, and was for that reason, Wednesbury unreasonable.

The Secretary of State appealed on basis that:

the recorder had no discretion to refuse the order and injunction once he had concluded that the Drury criterion was fulfilled. Alternatively, he erred in the exercise of his discretion by declining to grant the order and injunction. In the further alternative, he was wrong to hold that the Secretary of State was perverse in seeking the order and injunction. Finally, the recorder was wrong to conclude that the grant of the injunction was disproportionate.

Drury v the Secretary of State[2004] 1 WLR 1906 set out the criterion for prospective possession orders where further acts of trespass are threatened. A prospective order would be granted:

if, but only if, the claimant would have been entitled to an injunction quia timet against the occupants in relation to the separate area. [Drury 20]

and where there

is convincing evidence (not merely belief) to establish that there is a real danger of actual violation of all the areas in question by those actually trespassing on at least one of the areas when the proceedings are instituted. [Drury 20]

The test for a quia timet injunction, as set out in Snell’s Equity is:

Although the claimant must establish his right, he may be entitled to an injunction even though an infringement has not taken place but is merely feared or threatened; for “preventing justice excelleth punishing justice”. This class of action, known as quia timet, has long been established, but the claimant must establish a strong case; “no one can obtain a quia timet order by merely saying ‘timeo.’ He must prove that there is an imminent danger of very substantial damage…

The Drury criterion itself is taken from Wilson J at para 21:

Although it would be foolish to be prescriptive about the nature of the necessary evidence, it seems safe to say that it will usually take the form either of an expression of intention to decamp to the other area or of a history of movement between the two areas, from which a real danger of repetition can be inferred or, as in the MAFF case itself, of such propinquity and similarity between the two areas as to command the inference of a real danger of decampment from one to the other.

In Drury, there was no injunction application, on the basis that, as it could only be made and enforced against named individuals, it would not have been of much practical use.

In the appeal, the Sec of State argued that once the Drury criterion had been met, then there was no discretion on the making of a prospective possession order. The considerations of the Guidance should take place at the enforcement stage, not at the point of considering the claim. As the hurdle for the prospective possession order and an injunction were effectively the same, the recorder should also have granted the quia timet injunction, the practicality of enforcement being an issue for the Sec of State, not the court. In any case, the finding of unreasonableness should be set aside because the Forestry Commission were not going to enforce the possession order granted until the end of the school term.

The Respondents argued that

it would have been inconsistent with the government guidance set out above for a possession order in the wider form to be made. That guidance enjoins public authorities to consider whether eviction is really necessary. It requires public authorities to consider the specific characteristics of the site and of the incursion before they make a decision to evict. [...] the Forestry Commission should look at the site occupied, and on the basis of the guidance they should accept that, in view of the shortage of suitable accommodation for travellers, the presence of the respondents should be tolerated. [...] if the Forestry Commission wants a possession order in the wider form it should have to identify the areas where it accepts that the respondents could encamp.

On the injunction, the Respondents argued that the point of Drury was the creation of a practical remedy, and that the prospective possession order incorporated elements of an injunction to that end. or that reason an injunction in addition was inappropriate. In any case, grant of injunction was discretionary. As the recorder was plainly exercising his discretion within its proper bounds and he was entitled to reach his conclusions, the Court of Appeal had no basis to review the decision.

Lady Justice Arden, in the lead judgment, held that while the making of a prospective possession order was discretionary, once the Drury criterion were made out, it would only be in ‘exceptional circumstances’ that the order would be refused. Exceptional circumstances would include a failure to carry out a public law obligation.

However, the highest the obligation imposed by the Guidance could be said to be was ‘to consider the acceptability of an encampment once the encampment has occurred’, and it did not concern possible future sites. The Recorder was therefore wrong to apply it to future encampments. Consideration of the Guidance should occur at the time of enforcement. Moreover, while:

Mr Hobson [for the Respondent] urged on us the point that those factors did not need to be considered at all if the occupiers had previously been found on the land of the same landowner and a Drury order had been made. That order would identify the land to which it related. I do not consider that the court can fetter itself in relation to some future application to enforce a possession order. The occupation had not yet taken place. There will inevitably be an interval of time between the occupation and the order for eviction. In that time, the defendants may assert that there are matters which the Secretary of State ought to have considered but did not do so. There may be some people affected who are within the order yet unnamed. They may not know about the order for eviction from Hethfelton Wood. But, in so far as the occupiers were served with an order for possession of Hethfelton Wood, I would expect the court to be less willing to give them further time. If there is any such matter which the court needs to consider, it can be considered at the stage of enforcement.

On the injunction, there is enough distinction between an injunction served on individuals and a prospective possession order against any and all (putative) occupiers to mean that an injunction is also available as a complementary remedy. And there is no reason it can’t be granted on the same facts. The grant of an injunction is discretionary, but the Recorder erred in exercising his for the same reason his discretion on the prospective order was wrongly exercised. Nothing in the Guidance prevents the Sec of State obtaining an injunction. While actually exercising the injunction, on the facts of this case, might seem heavy handed, there was nothing to suggest that the Sec of State would not exercise his discretion in whether to enforce the injunction in accordance with public law obligations.

Lord Justice Pill agreed.

Lord Justice Wilson agreed on the possession order, but suggests that where there are two potential discretionary remedies available, the presumption should be that only one is granted, the most practically effective. he therefore disagrees on the grant of the injunction and approves the part of the recorder’s judgment that finds that “the quasi-criminal sanction of committal for contempt added nothing of value for the Secretary of State to his ability to secure clearance of the land pursuant to the extended order”. [paras 72-76]

This judgment clearly has significant repercussions for travellers on unauthorised sites and threatens to make prospective orders and injunctions considerably more likely where the Drury criterion are met. While local authorities have more extensive roles under the Guidance than the Forestry Commission, to be sure, this combination of prospective possession order and injunction could well be used against roadside or verge encampments, with the local authority seeking a prospective order covering great swathes of land. That the Guidance only requires consideration at the point of enforcement, while leaving injunction enforcement hanging over the heads of the travellers, makes for a very difficult situation, both for the travellers and their advisors.

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ASB corner

Published
by
NL
on 09/08/2008
in ASB, FLW case note, Housing law - All and Possession
. 1 Comment

The August 2008 Legal Action contains a couple of cases concerning anti-social behaviour possession claims that weren’t recorded elsewhere.

Ealing LBC v Jama B5/08/0104 was a Court of Appeal matter. Mrs Jama was Ealing’s secure tenant of a two bed property. The household included her husband and six children. Ealing sought possession on allegations of ASB including noise nuisance, ten instances of flooding into the flat below, problems with rubbish disposal and urination in the lift. At the County Court, the judge accepted Mrs Jama had faced some harassment, but did not accept her evidence on the flooding. The judge accepted the evidence of a plumber that the flooding was not due to defective water system. The judge held it was reasonable to make a possession order because there had been two substantial breaches of the tenancy – the flooding and serious and persistent noise nuisance. Mrs Jama appealed.

The Court of Appeal found it was impossible to hold that the noise was ‘domestic noise’. Reasonableness was a matter for the judge at first instance and the Court of Appeal would not interfere unless the judge had erred in law. For that reason the judge’s decision could not be attacked. But in any case the decision not to suspend the order was clearly right.

High Peak BC v Purser Buxton County Court 26/11/2007, like North Devon Homes v Batchelor, concerned a conviction for posession of drugs. Ms Purser was a secure tenant with two children. In Jnauary 2006 she was convicted of possession of cannabis resin. In October 2007, she pleaded guilty to supply of ecstasy, possession and supply of amphetamine and possession and supply of cannabis resin, all at the property. She received a nine month sentence, suspended and a 12 month supervision order. She was engaged with professional drug support and family support services and drug test were negative.

In the possession proceedings, DJ Jolly found it was reasonable to make a possession order, but in view of the evidence that suggested there was a ‘real hope’ for the future, the order was postponed for two years on condition Ms Purser comply with the tenancy agreement.

Also in Legal Action, R v Edwards [2008] EWCA Crim 1172 (not on Bailii) did not concern possession proceedings, but rather an ASBO excluding Ms Edwards from the home she owned for ten years. The ASBO was made on the basis of ‘extreme harassment’ of a neighbour, including damage to their car, throwing rubbish and excrement at their house, loud singing and banging. She had breached an injunction, a restraining order and had been sentenced to imprisonment three times.

The Court of Appeal upheld the ASBO. An order excluding someone from their home that they own is very much a last resort, but that point had been reached. The order was necessary and proportionate, considering Art 8.

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Comments on Malcolm in the Lords

Published
by
NL
on 29/06/2008
in FLW case note, Housing law - All and Possession
. 68 Comments

Table of contents for Disability Discrimination

  1. Catching up – Disability Discrimination and possession
  2. Disability and tenancy – More on Malcolm
  3. On impotent landlords and disability.
  4. Disability discrimination – the comparator
  5. DDA and mandatory possession
  6. S v Floyd and a disability defence
  7. Adjourning pending Malcolm in the Lords
  8. And now Malcolm!
  9. Malcolm in brief
  10. Comments on Malcolm in the Lords

Oh dear, oh dear. That could have gone better.

I’m not going to go into great detail on the five separate judgments from the House of Lords in LB Lewisham v Malcolm [2008] UKHL 43, but I do want to look at where it leaves us and what the problems are with the judgments.

The headline result is that:

  • For an eviction to be unlawful due to disability discrimination under s.22(3)(c), the eviction must be for a reason that, in the mind of the landlord, is related to the disability.
  • To be discriminatory the treatment must be less favourable for a reason related to the disability. The comparator against whom the treatment is measured is someone who has acted, or not acted, in the same way but is not disabled. So, for example, someone who has rent arrears, or has illegally sub-let, if that is the position of the disabled person.
  • It is still possible (by a majority) to raise disability discrimination as a ‘defence’ against mandatory or ‘undefendable’ possession claims, but the circumstances in which this will be possible will be extraordinary.

This is a reversal of all the key points of the Court of Appeal judgment (see previous discussions listed below). What is worrying is the way in which the Lords approached the appeal and with it the impact of their decision, which will extend way beyond housing law.

Their Lordships are very concerned about the practical results of the Court of Appeal judgment. On a number of occasions, for example, it is said that X ‘is difficult to accept’ (para 14), or ‘very difficult to accept’ (para 28), or even ‘the unacceptability of these logical conclusions[...] suggests, or perhaps shows, that the conclusions must be based on an erroneous premise’ (para 29). This latter phrase indicates the problem with the approach taken by the majority, reasoning a posteriori to what the Disability Discrimination Act ‘must mean’. In doing so, they do considerable violence to the Act and to settled case law.

The issue is s.24(1) which defines discrimination for the purposes of s.22(3) – the eviction clause. S.24(1) reads:

For the purposes of section 22, a person (‘A’) discriminates against a disabled person if -

(a)  for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and

(b)  he cannot show that the treatment is justified.

However, exactly the same formulation appears at s.5(1) – employment; and s20(1) – Goods and services. Their Lordships’ view of the meaning of s.24(1) therefore impacts on every other part of the act. Some of the judgments appear to be completely oblivious to this. Nine years of settled employment case law has just gone down the pan.

Baroness Hale’s judgment alone takes note of the broader issues of the drafting and intent of the Disability Discrimination Act. As she points out, unlike race and sex discrimination statutes, there is no indirect discrimination in the DDA, although it was undoubted intended to cover indirect discrimination. Baroness Hale suggests that this was because indirect discrimination would not extend far enough to cover ‘reasonable adjustment’ (see paras 73-75). She points out the history of the bill where the specific phrase at issue, ‘to whom that reason does not apply’ was introduced by amendment (para 79) and specifically to make the comparator a person who was not in the same position as the disabled person.

For this reason, Baroness Hale finds the Novacold interpretation was exactly what Parliament intended. There was no indication that the three instances of the same wording in the act should be treated differently.

The specific problem for services and premises – which was the provision facing the Lords here – is the very narrow range of possible justification for the alleged discriminator. Where employment related discrimination is open to a range of justifications for the treatment, the section on eviction only has the specific justifications set out at s.24(3). This means that s.22(3) has a more draconian impact than the same formulation of discrimination at s.5(1). This is bad drafting on amendment, certainly.

Baroness Hale points out that subsequent legislation, 2003 Amendment Regulations, left s.5(1) terms intact in the new s.3A(1), but added a new s.3A(5) which provides for direct discrimination where the disable person and the comparator are of the same ability. There is no possibility of justification for this.

What the Lords have done is effectively render s.3A(1) and s.3A(5) identical, giving the option of justification where Parliament had intended there to be no justification possible. [Edit. I have been rightly and firmly corrected by a large posse of employment and disability lawyers in the comments below. No it doesn't, because anything that is arguably direct discrimination will almost certainly be caught by s.3A(4) with s.3A(5) - no justification for unfavourable treatment on the ground of disability. Meaning that, until further cases or legislation that s.3A(1) is possibly absolutely pointless.]

The Court of Appeal held by a majority that no knowledge of the disability was required by the landlord for the eviction to be unlawful. On a strict construction of s.21(1) via Novacold, this seems right. However, a broad range of justification would mitigate the effects. Baroness Hale would rather see a close connection between the disability and the reason for the landlord’s behaviour. She suggests that an awareness, at least, of effect of a policy or action on a disabled person would be required (paras 84 – 85). She points out that showing a justification requires a knowledge of the disability. Baroness Hale’s eventual suggestion is in accord with the EHRC view – the Court should have discretion whether ot not to grant a possession order, having weighed up the facts and interests. The easiest way to achieve this would be an amendment under regulations to expand the list of available justifications to the landlord.

The cases would then turn on the closeness of the connection betwene the disability and the landlord’s reasons for acting as they did – the more obvious the connection between the disability and, say, rent arrears, the more difficult it would be to recover possession or rent.

Although not a wonderful solution, Baroness Hale’s is by far the least damaging and most sane. It would also have the merit of keeping discrimination ‘defences’ to possession alive in a broader, but not ridiculous, range of circumstances than the majority view. Unfortunately, she was in a minority of one in her reasoning, even if she came to the same result.

The Lords have quite obviously gone against the intent of Parliament and left a hell of a mess. The effects of bad drafting are for Parliament, or the Government via regulations to put right. Quite what happens now is anyone’s guess. One would hope for a prompt response by Parliament to sort out the problem, but one might hope in vain.

[I should point out that in all of this, I agree with Francis Davey's comments on my 'Malcolm in brief' post. Link below]

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Malcolm in brief

Published
by
NL
on 25/06/2008
in FLW case note, Housing law - All and Possession
. 10 Comments

Table of contents for Disability Discrimination

  1. Catching up – Disability Discrimination and possession
  2. Disability and tenancy – More on Malcolm
  3. On impotent landlords and disability.
  4. Disability discrimination – the comparator
  5. DDA and mandatory possession
  6. S v Floyd and a disability defence
  7. Adjourning pending Malcolm in the Lords
  8. And now Malcolm!
  9. Malcolm in brief
  10. Comments on Malcolm in the Lords

LB Lewisham v Malcolm [2008] UKHL 43

Court of Appeal thoroughly and unanimously overturned.

The reason for the treatment is the reason in the mind of the landlord, or one which can be imputed to them. So the landlord must be aware or be imputed to be aware of the disability, and the reason for the treatment in the landlord’s mind must be related to the disability.

Clark v Novacold mostly disapproved. The Court has some problems with the comparator issue, but mostly settles for the comparator for less favourable treatment being someone who has done the same thing but is not disabled (Thus, in Malcolm, someone who has illegally sub-let). Marvellous passage on the blind man and guide dog hypothetical at 35.

Baroness Hale alone disagrees, holding that the Novacold interpretation was what Parliament intended and approves Novacold for that reason. But she also finds that the landlord must or ought to have known of the disability and that knowledge to be a reason for the treatment.

Baroness Hale also argues for the introduction of a discretion on granting possession orders where there is apparent unlawful discrimination, balancing occupier and landlord interests.

Mandatory/unanswerable possession procedures can still have a DDA ‘defence’, it appears, but discrimination must be established as above.

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And now Malcolm!

Published
by
NL
on 25/06/2008
in Housing law - All and Possession
. 2 Comments

Table of contents for Disability Discrimination

  1. Catching up – Disability Discrimination and possession
  2. Disability and tenancy – More on Malcolm
  3. On impotent landlords and disability.
  4. Disability discrimination – the comparator
  5. DDA and mandatory possession
  6. S v Floyd and a disability defence
  7. Adjourning pending Malcolm in the Lords
  8. And now Malcolm!
  9. Malcolm in brief
  10. Comments on Malcolm in the Lords

Before I even have time to get to grips with Weaver, the House of Lords judgment in Malcolm v Lewisham is out. No time even for a quick look now. Hopefully I’ll get to post something later on.

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Wondering about McCann

Published
by
NL
on 18/05/2008
in Housing law - All, Licences and occupiers and Possession
. 3 Comments

Well, McCann v UK certainly seems to have stirred things up. Naturally, most of the speculation is on the effect and extent of the judgment.

I’m still trying to work out for myself what the likely or even possible effects are, so this is a work in progress.

In descending order of certainty…

Common law summary possession by a local authority/public body landlord after Notice to Quit (e.g Ex joint tenants; temporary accommodation under s.183 and possibly s.192 HA 1996; ’successors’ to deceased tolerated trespassers; non-successor occupants; etc.)

Possession proceedings will need to include the potential to consider whether the eviction is proportionate under Art 8.2 ECHR.

Does an assertion that the eviction is not proportionate constitute a defence? I think it is likely to be so. Although alternatives might include compensation, if the eviction is disproportionate, the court would be aiding a breach of Art 8.2 in making a possession order. (The similarity to the ‘unlawful act’ element in Malcolm v Lewisham might mean that the House of Lords judgment in Malcolm has an impact, but Malcolm concerns interpretation of statute, not ECHR).

Where will this leave the tenant? Most likely as an ex-tenant still in occupation. I can’t see much in McCann to suggest that the ending of the secure tenancy per se was taken to be disproportionate, the issue being purely that the possession proceedings could not consider proportionality of eviction.

Mandatory possession proceedings brought by a public body landlord under statute – for instance introductory and demoted tenancies.

Trickier, as to some extent the summary nature of the possession hearing is given in statute. While in common law proceedings, the Court can introduce ‘proportionality’ under its own duty under the Human Rights Act, it is surely different where the process is statutorily limited. Would the best the Court could do be a declaration of incompatibility?

Possession proceedings by non-public bodies, private landlords or RSLs, where summary or mandatory.

There have been suggestions that McCann might hold other than for a public body landlord. Given that private and RSL landlords have no duty to comply with the ECHR under the HRA, there is no duty on them to behave proportionately in evictions and therefore no basis for the court to hold them to proportionality as being their duty.

So, the only way that I can see that McCann would extend beyond public body landlords is if the Courts, as public bodies, are taken as being required to consider proportionality in their decisions to make an possession order – the duty of behaving proportionately being the court’s, not the landlords. Thus there would be a general duty to consider proportionality in all possession claims, whether brought by private landlord, RSL, public landlord, and whether summary, mandatory, or discretionary.

I very much doubt that this can be the case. It is not, after all, the court that is evicting the (ex)tenant/occupier, it is the landlord.

McCann focussed on the procedural ‘defect’ of the summary possession procedure against a local authority (ex)tenant. The LA’s ability to ’sidestep’ the requirements of HA 1985 via the NTQ was specifically raised as an issue by the ECtHR in the judgment. The ECtHR acknowledges that the existing summary procedure, and the availability of JR, provides safeguards to ensure the possession claim is lawful and for a legitimate purpose. If the ECtHR had been concerned with possession claims in general, then the lack of availability of JR against private or RSL landlords could have been mentioned as an even greater defect. But it wasn’t.

The ‘procedural defect’ is therefore a lack of ability to scrutinise whether the landlord’s interference with Art 8 rights is proportionate. This can only be the case where the landlord has a human rights duty to act proportionately.

I would be keen to be shown I was wrong, obviously, but I can’t see how McCann can extend beyond public sector landlords. Even if it does, we are back to the issue of statutorily given processes (s.21, mandatory grounds, etc.) and declarations of incompatibility.

Doherty v Birmingham in the Lords will give some clarification, but it is going to be fun in the County Courts for a while.

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