In Barber v Croydon LBC  EWCA Civ 51, the Court of Appeal found Croydon’s decision to pursue possession proceedings of a non-secure tenancy occupied by Mr Barber Wednesbury unreasonable, being by my estimation the third such successful use of a gateway (b) defence in the higher courts (after Doherty itself and McGlynn). There are one or two important points discussed; in particular, the CA took the Taylor approach to possession proceedings as opposed to that advocated in Doran, but more of that below.
First, the facts: Mr Barber suffers from learning difficulties and a personality disorder of a permanent nature. he was provided accommodation by Croydon under Part VII (as a non-secure tenancy) in 1999. After an apparently clean record, in 2007, he swore at, threatened, and kicked (in the knee) the flats’ caretaker. The council’s ASB officer then got involved and immediately served an NTQ, without considering Mr Barber’s circumstances or meeting him. Subsequently, they did meet and, although some of the allegations were disputed, he did accept a police caution for an offence. Croydon then issued possession proceedings, which were defended on a number of bases, although two were pursued to the CA (the gateway (b) defence and a DDA defence). Reliance on the DDA lead to a joint instruction of a psychiatric expert (Dr Owen) who, in brief, found that his disability contributed to his behaviour in relation to the caretaker; if evicted his life would descend into chaos. It should also be noted that there was just this one incident – there had been nothing else before or since.
The council, through the ASB team manager, nevertheless decided to proceed with the possession claim. They did so for a number of reasons relating to the protection of their employees, sending the correct message to their tenants, the seriousness of the incident (even though isolated), and, most particularly, the manager was not convinced that the conduct was caused by Mr Barber’s mental disabilities (thus directly conflicting with the expert evidence).
The initial issue was the Doran/Taylor issue, ie at what point does the gateway (b) claim arise? Doran said that the relevant point was the decision to serve the notice to quit; Taylor was far more expansive. Patten LJ, giving the only reasoned judgment in this case, sided with Taylor. Patten’s LJ’s reasons are compelling, particularly in a claim such as the present:
… in principle, there is no reason to stop at that point [ie the NTQ]. In Kay Lord Hope spoke of the challenge under gateway (b) being to the decision of the local authority to recover possession. That process involves not only the service of a notice to quit as a necessary first step but also the commencement and conduct of the possession action thereafter. It seems to me that a local authority is bound to keep the position under review and to take into account any relevant facts which come to its notice at any stage in the proceedings. This process of review has two obvious consequences. The first is that it avoids any questions of retrospectivity by requiring the local authority to make a series of decisions which accommodate any new facts or other material relevant to its decision to seek possession. The second is that it allows the local authority to re-consider new material subsequent to its initial decision to terminate the tenancy and so avoid the charge that it has failed to take all relevant matters into account. By the same token, a decision to press ahead with possession proceedings taken following a re-consideration of the case subsequent to the notice to quit will be reviewable regardless of the legality of the earlier decision to commence the proceedings.
Wayne Beglan, for Croydon, relied on the ASB manager’s assessment as essentially curing any defect. There then followed quite a lengthy discussion of the government’s ASB guidance and Croydon’s policy. That can be cut quite short here because the essential points to note are twofold (1) both the guidance and the policy clearly delineate that action taken against people with disabilities requires a multi-agency partnership type approach and support for the individual; and (2) although Mr Barber’s action fitted into the most serious category of ASB for Croydon’s policy, which “will almost always result in legal action … for an outright possession order”, it only just did so, and the policy itself more broadly drew attention to the range of possible actions (such as an ABC) to change the behaviour of a perpetrator: “Simply to remove him to another location may not of itself solve the problem” (at ).
Christopher Balogh, for Mr Barber, argued that Croydon had pressed ahead with the possession claim regardless of the alternative possibilities to which they had given no consideration. Patten LJ agreed. There had been no liaison with other mental health or social services to develop an alternative strategy. The ASB manager’s assertion that there had been no further disturbance at the property after the NTQ because of its deterrent effect also meant that there was no need to press on with the possession claim. Patten LJ continued (at ):
But the principal criticism that can be made is that Mr Hunt carried out the analysis of whether some alternative course of action would prevent any further instances of ASB in the future without assistance from the specialised agencies and without, in my view, giving Dr Owen’s report the weight which it clearly deserves; indeed any weight. Thus he appears to have rejected Dr Owen’s view that the incident was linked to Mr Barber’s disabilities, although no reasons are given as to the basis on which this was done. There was also no apparent consideration of the possible consequences for Mr Barber of losing his flat which Dr Owen considered would cause his life to descend into chaos.
Any steps to explore alternatives should have taken place prior to the trial of the claim.
Conclusion: Croydon’s claim was Wednesbury unreasonable in an old-fashioned sense. Wayne Beglan appears to have been concerned that Croydon would be issue-estopped if they sought possession on the same grounds again, an argument which seems to fly in the face of what is being required, ie a proper reconsideration of all the facts to satisfy the council’s public law obligations.
Croydon were clearly on sticky ground after Patten LJ’s refutation of the narrow approach taken in Doran. Patten LJ’s reasoning on this point is compelling and the gateway (b) claim must attach to each decision taken by the public authority on the way to the ultimate sanction. Such an approach may well actively assist public authorities as previous decisions can effectively be remedied by a subsequent proper consideration, a point made by Patten LJ. Croydon seemed to have adopted a trigger happy approach without taking into account the evidence – or, perhaps worse, disregarding the expert evidence. I have an idea of ASB teams as having a “prosecution-first” mentality, which may be unfair but reflects a criminological bent on my part. What this case is telling us is that public authorities need to have regard to all the evidence and the proper application of their policy (in this case, consideration of the alternatives). Mr Barber’s personal circumstances were clearly relevant here (cf Defence Estates) because of Croydon’s policy. One slight pang I have about this case, though, is whether it is requiring something close to a proportionality assessment of the possession claim (which may go further than other courts have gone in the past, eg Stokes esp at , although it does reflect the joint instructions to the expert, who was also asked to make effectively a vulnerability assessment for priority need, as well as the terms of the policy itself).