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Public Law Defence – an arguable case


McGlynn v Welwyn Hatfield District Council [2009] EWCA Civ 285 was an appeal of a summary possession that had been stayed pending Doherty in the Lords.

Mr McGlynn was granted a non-secure tenancy by Welwyn in 2000, in pursuance of homelessness obligations under Part VII HA 1996. The tenancy was therefore terminable by Notice to Quit and Welwyn served NTQ in 2004 and possession proceedings in April 2005. Summary possession followed in December 2005, set aside on appeal to CJ in August 2006 on the basis that it was seriously arguable that the LA had exercised its powers improperly. At renewed hearing before a DJ, the Defendant argued that the Council had improperly exercised its powers in seeking the possession order (not in serving the NTQ, which was not challenged). The DJ found there was not a seriously arguable defence and made the possession order. The appeal was then to the Court of Appeal.

The appeal was thus primarily on the issue of whether Mr McGlynn had a seriously arguable defence on public law grounds.

Some brief factual context. There had been allegations of nuisance against the Defendant, from a sole source. This was the basis of the NTQ. Shortly after the NTQ, the Council wrote to Mr McGlynn’s drug caseworker, who had objected to the allegations, as follows:

We have received a number of complaints regarding visitors to Mr McGlynn’s property and also about his own behaviour. The complainant is aware that their evidence will be needed in court and they are willing to assist the council and have agreed to give evidence in court if needed. Should the council be required to apply for a Possession Hearing Mr McGlynn will have the opportunity to offer a defence, either personally or via a Solicitor, to the Court.

The Local Authority does not take action against a person’s tenancy unless they are satisfied that there has been a significant breach that has caused a nuisance or annoyance to other residents in the locality. The Local Authority also liaises closely with the Police in relation to complaints received and they have confirmed that they have received a number of calls regarding the anti-social behaviour caused by either Mr McGlynn and/or visitors to his property.

Mr McGlynn has a non-secure tenancy that can be brought to an end by serving a Notice to Quit. As a Notice to Quit was served on 28 April 2004, Mr McGlynn no longer holds a current tenancy with Welwyn Hatfield Council. However, we would need to apply to the Court for vacant possession of the property.

If we do not receive any further complaints of anti-social behaviour that can be linked to Mr McGlynn or his property we will consider granting him a further non-secure tenancy with an option to him being re-housed in a smaller property as requested. However, if the complaints continue, we will have no option but to continue with the legal action required to repossess 20 Kingscroft…

If you require any further information, please do not hesitate to contact me on the above number. I am, of course, willing to discuss any matter directly with Mr McGlynn.

The Council’s initial claim was expressly on the grounds of the original alleged nuisance and further complaints (also from the same sole source). Mr McGlynn had initially defended on the basis that the allegations weren’t true. After an adjourned hearing, the Council proceeded solely on the basis that an NTQ had been served and on this ground the initial possession order given. The appeal to the CJ, which was heard shortly after Kay v Lambeth in the Lords, was allowed on the basis that, given the Council’s letter, quoted above, it was seriously arguable that the Council had acted in a way no reasonable person would consider justifiable. The directions for re-hearing included one for the Council to serve further evidence to show why the Council was satisfied that the nuisance continued and to show how they had given the appellant an opportunity to make representations prior to the issue of the claim. No evidence on these points was forthcoming. Despite this the DJ made a PO at the rehearing of the claim, and refused to consider that Mr McGlynn had an arguable defence.

So to the Court of Appeal.

Jan Luba QC for Mr McGlynn requested that the grounds be amended to include a challenge to the lawfulness of the NTQ. This was refused as the point had not been raised at all below, where the lawfulness of the NTQ was admitted. He further requested an amendment to include argument that the procedure adopted by the Council failed to provide the necessary procedural safeguards of Mr McGlynn’s Art 8 rights – the McCann/Cosic line – albeit that this could only be argued if or when the case reached the Lords.

Aside from these requests, Mr McGlynn’s main argument was that this was a ‘gateway b’ challenge, not confined to wednesbury unreasonableness. The legislative schema was comparable to that in Kay and in Doherty, but distinct from that in Doran, as there was no possibility of suspending execution of the possession order, as in the latter.

The DJ in the rehearing had erred in law by failing to consider the Council’s letter (above) as a whole, which amounted to a statement of policy not to take possession action unless satisfied of breach of tenancy causing nuisance to others and stating that Mr McGlynn would have the opportunity to challenge such a conclusion. The Council may have answers to these points, but it had failed to produce them, despite the CJ’s direction. The appellant therefore did have a seriously arguable public law defence and the DJ was wrong to conclude otherwise.

The Council argued that a reasonable council was not required to conduct an investigation into the truth of allegations of nuisance before deciding that it was appropriate to bring proceedings. This would extend to non-secure tenants a security of tenure Parliament had chosen to exclude. The DJ was right was right in his decision. The Council had ample ground to believe that there were further breaches and the Defendant’s initial defence gave no grounds for seriously believing otherwise.

The Court of Appeal, in a sole judgment, held:

This was an unusual case. The Council’s letter contained a statement of policy that the Council did not take possession action unless satisfied of significant breach. Given the time between NTQ and issue of claim (about a year), it was arguable that a reasonable council would not have issued proceedings without being satisfied that there had been some further significant breach.

To be so satisfied did not require a quasi judicial investigation to be conducted, but the question before the Court was whether it was seriously arguable that the Council did not do enough to satisfy itself of significant further breach.

The further evidence presented by the Council after the appeal to the CJ, somewhat surprisingly, did not provide the information to support its assertion that it had done enough. There was no evidence of the minutes of any panel considering the decision to issue proceedings. there was no evidence of consideration of the further complaints – did they all come from a single person and had they ceased when that person was rehoused, as asserted by the Defendant? There was no evidence as to whether it was assumed by the Council that the possession proceedings would give Mr McGlynn the chance to answer the allegations (as they had issued on grounds of nuisance, not of summary possession based on NTQ).

On the basis of the paucity of evidence provided by the Council about the decisonmaking process, the DJ had clearly taken too narrow a view and was wrong to decide that the public law defence was not seriously arguable.

Appeal allowed. On that basis, there was no need for either of the amendments sought by Jan Luba QC.

Now this is indeed useful. Granted the Council’s letter is the ‘unusual’ element in this case – particularly as it is taken as setting out a policy that the Council failed to provide evidence that it had followed, but this also involves a bog-standard non-secure tenancy, NTQ and summary possession procedure.

The Council’s ‘statement of policy’ and an apparent failure to follow it (or arguable failure) is taken by the Court of Appeal as an unproblematic gateway b matter, with a clearly arguable public law defence. The Court is untroubled by the Council’s argument that it is not required to conduct a quasi judicial inquiry, ‘consideration’ such that a reasonable council would be satisfied of a further breach is not taken to be the same level of inquiry and not an additional level of securoty of tenure above that given in statute. Useful material there.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.


  1. J

    Three points spring to mind:
    (a) I’m not so sure that this is an “unusual” case. Most of the RSL and LA policies that I’ve got on my laptop make clear that they too would only serve an NTQ once they were satisifed of some sort of wrongdoing;
    (b) However, the authority in this case were the authors of their own misfortune. By failing to adduce evidence to explain why they were satisfied that the ASB had occured, they were inviting a result like this;
    (c) It’s reassuring to see everyone accepting that “gateway (b)” isn’t limited to a Wednesbury challenge but encompases the whole scope of public law. Quite why anyone ever thought the contrary is beyond me, since Kay hadn’t argued for that position and Doherty was expanding, not reducing, the scope of Kay.

    In truth, this isn’t a particularly exciting case and I certainly don’t see it as laying down any new law. The public law element of this defence was manifestly arguable and one suspects that, had the case been heard by someone other than a DJ (i.e. someone with public law experience, even if only a CJ with experience of s.204), the correct result would have been obtained at the outset without a need for the appeal.

    • NL

      I agree that it probably isn’t unusual – I think the Court of Appeal was playing safe, not wanting it to look like such a challenge could be common. That said, actually sending the letter stating the policy after serving the NTQ probably was unusual ;-)

      As you say, most RSL/LAs would have such a policy, and it struck me as arguably unreasonable if there wasn’t a policy in place.

      Not exciting? No new law? Perhaps not, but useful to see gateway b arguments bedding down – and also to see the nails banged into the coffin of the ‘we don’t have to carry out quasi judicial investigations’ argument from the LA. And it does make absolutely clear that it would now be a foolish LA that would simply seek to rely on ‘NTQ served’ without being able to adduce evidence of the considerations that led to the decision to do so.

  2. J

    But, of course, any well advised LA/RSL should have been doing that since Kay… :-)

  3. Carl Gardner

    I’ve not been following this closely till recently – but either I’m failing (as a non-housing specialist) to get something, or this is all just a desperate, over-complex and futile rearguard action from our judges. Isn’t it clear from Strasbourg that there simply must be consideration of proportionality when an order is made (and allowing possession is in substance equivalent to an order whatever its formal categorisation domestically)?

    My one concern about the Strasbourg approach is on the Begum issue: the point must be whether possession actually is proportionate, not whether a court considered its proportionality. But in a situation like possession where the court’s decision whether to grant possession is key, they amount to the same thing under the HRA, don’t they, in a practical sense? To do its section 6 duty a court must consider proportionality.

    I can’t see how or why our judges are trying to stand against this. And the attempt seems to be making the law ludicrously convoluted, with these two gateways and the question whether gateway b is now a shade wider. Bonkers!

    • NL

      Carl, you are exactly right about the rearguard action, and the ECtHR is about to tackle the major Lords decision on this in Kay. But what you suggest also shows the scale of the problem. So far Strasbourg has taken proportionality as an Art 8 issue, not an Art 6 one, so it has been a question of proportionate actions by the public body landlord, and the issue is whether the process allows for an examination of whether the landlord’s decision to seek possession was proportionate – Judicial Review not being sufficient where possession is summary (McCann). But it is not about whether making a possession order is proportionate, rather whether there is the opportunity for scrutiny of whether the public body landlords’ decision to seek possession was lawful. It is a procedural issue for the Courts.

      But if you make it an Art 6 issue – whether granting a possession order is a proportionate action by the Court – then the whole private sector tenancy system would be caught, and also all the mandatory possession grounds. The whole statutory apparatus of possession for private letting (and some RSL letting) would be dismantled. This may be why Strasbourg has avoided Art 6.

  4. J

    Carl – quite right. No-one thinks that the approach taken by the ECtHR and the domestic courts can stand together and, ultimately, we suspect that the ECtHR’s position will win out, if only because the Government agrees with the ECtHR!

    Although, arguably, the Art. 8 duty already bites on the court, regardless of any additional protection imposed by Art. 6. See para. [46] of Doherty [2008] 3 WLR 636


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