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Oh Brave New World

Eastland Homes Partnership Limited v Sandra Whyte 2010 EWHC 695 (QB)

Following Weaver v L&Q and McIntyre v Gentoo, here is a clear indication of the brave new world of public law in which RSLs (sorry, PRHPs) find themselves. It is also an interesting and useful example of a public law defence (gateway b) in action and raises the issue of ‘starter tenancies’ as deployed by PRHPs.

Ms Whyte had a starter tenancy from Eastland Homes. This is an assured shorthold tenancy for six months, after which , typically and according to the agreement in this case, it will either be extended for a further six months or the tenant would be granted a full assured tenancy. In the ‘starter tenancy’ period. the tenant is at risk of s.21 possession proceedings.

Unusually, Ms W was granted a second starter tenancy by Eastlands after the first, extended, one was ended by possession order. The new tenancy included an agreement by Ms W to pay the rent weekly and engage with the rent team if there were problems. After the first 6 months of this second tenancy, it was extended for a further 6 months rather than made an assured tenancy, on grounds of rent arrears of £214. At the end of the further 6 months, arrears were £367, in part because of HB being paid in arrears. There had also been an accusation of ASB – noise – against Ms W’s daughter.

On 23 February 2009, Eastlands served a notice under s.21 Housing Act 1988, requiring possession from 27 April 2009. Eastlands also sent a letter saying Ms W would not be offered an assured tenancy because of arrears and ‘neighbour nuisance’ and enclosing what was described as ‘the complaint policy’ if she wanted to appeal the decision

The document was actually Eastlands ‘starter tenancy appeals procedure’. The procedure needs quoting at length:

i) The tenant must appeal in writing within 14 days of service of the notice

ii) Appeals will be heard in person by an appeals panel consisting of two members of the Claimant’s Board of Management and a Chief Executive or a Director, but not the Director of Neighbourhood Services

iii) Appeals will be heard and a decision reached at least two weeks before the notice to quit expires

iv) The Tenant has the right to attend the appeal hearing and to bring or to be represented by someone of their choice such as a legal representative, advice worker or friend.  Written presentations and arguments can be submitted

v) The Claimant will give the tenant at least five days notice of the date, time and venue of the hearing

vi) Advance copies of any written evidence which will be referred to at the hearing will be supplied

vii) The Claimant will present its case at the hearing. The tenant will have an opportunity to ask questions and get clarification.  The tenant may question anyone giving evidence. The tenant will then present his case.

viii) The appeals panel must decide whether the Section 21 Notice was served correctly, if it was appropriate in terms of the evidence provided and if the decision to end the tenancy will “stand up to scrutiny”

ix) The panel must establish the facts of the case that are not in dispute, resolve any facts that are disputed and relate those to the action the Claimant is taking to end the tenancy

x) On balance, after hearing from the tenant, the panel will need to decide whether the tenant has broken the tenancy agreement and, if so, whether the breach justifies eviction

xi) The Claimant will write to the tenant with the panel decision within seven days of the hearing.  Whatever the decision, the tenant will be informed of what will happen next and “if the appeal fails, details of how they can appeal further if they wish”

xii) Reasons will be given for the appeal panel decision.

Ms W sent in a written appeal refering to HB issues and an agreement to pay £10 per week. On the ASB, this was the first time any problems with her daughter had been brought to her attention. Eastlands acknowledged the letter on 30 April. On 5 May, they wrote to say the appeal would be heard 12 May. Ms W didn’t attend. At the meeting a housing officer presented a written report on the current tenancy. The panel considered arrears, £380 at that point, decided not to include ASB as an issue as there was nothing that could be formally evidenced, examined the previous starter tenancy and decided that as there was no evidence of a ‘significant effort’ to keep rent up to date, no assured tenancy would be offered, no further extension and terminating the tenancy was appropriate. A letter was sent to Ms W stating the conclusion but giving no reasons. It also said Eastlands would apply for a warrant.

That was more than a little premature. Instead possession proceedings were issued based on the s.21 notice.

In view of Ms W’s defence, HHJ Holman decided to sit as a High Court Judge.

Ms W’s defence (as amended) made the case that the decision of the Claimant to seek possession was unlawful, procedurally unfair, unreasonable and disproportionate – the public law defence -under the following headings:

i) In conducting the appeal into the decision to serve the Section 21 Notice the Claimant failed to act in accordance with its own published policy:
a) failure to hear the appeal and promulgate a decision at least two weeks before the expiry of the Section 21 Notice
b) failure to supply advance copies of written or other evidence
c) failure to inform the Defendant how she might appeal further
d) failure to provide any proper reasons for the decision
ii) Failing to taking into account material considerations, in particular (a) the Defendant’s recent payments to the rent account and (b) the level of arrears generally.
iii) Even if all relevant circumstances were taken into account the decision was one which no reasonable authority could have reached.
iv) Breach of the principles of natural justice in that the Claimant refused a reasonable request for the hearing to be adjourned, given that the Defendant had received less than seven days notice of it and had been unable to obtain legal advice prior to it.
v) Breach by the Claimant of its own policy on the use of starter tenancies in that it granted the Defendant a second starter tenancy.

A further ground of unnecessary and disproportionate interference with Art 8 rights was conceded to be not open to Ms W to argue in the High Court in view of Kay and Doherty, with her position reserved for a higher court if necessary.

In setting out the defence, Ms W asserted that Eastlands was a public body for the purposes of judicial review and human rights. Eastlands accepted that Weaver bound the court but reserved its position for arguing in a higher court.

Held
On gateway b challenges:
Following Smith v Buckland [2008] 1 WLR 661, the challenge extended beyond Wednesbury unreasonableness.

Following Central Bedfordshire Council v Taylor [2010] 1 WLR 446 and Barber v Croydon LBC[2010] EWCA Civ 51 (and contra Doran v Liverpool CC [2009] 1 WLR 2365), at issue is a series of decisions, from deciding to serve notice through to enforcement of a warrant. However, contra Eastland’s argument based on Ms W’s failure to keep to a post-issue argeement on repayment of arrears, the continuum does not cut both ways.

Gateway (b) requires the authority to keep the situation under regular review. This is for the protection of the tenant and Gateway (b) provides a defence to the claim. If the authority makes a decision which no reasonable person would consider justifiable, the guillotine comes down, as it were.

That decision is not retrospectively rendered lawful by a subsequent default of the tenant.

On the specific grounds of the defence, contra Eastland’s argument that procedural aspects were a private matter not amenable to review, it would be artificial to separate issue of procedure and substance.

The appeal and promulgation of the decision did not take place at least two weeks before the expiry of the s.21 notice, but it was difficult to discern how Ms W was prejudiced by this, if at all.

The letter notifying the decision of the panel did not spell out the reasons for the decision, but too legalistic an approach should not be adopted here. Again, no discernible prejudice to Ms W.

The leaflet on the the appeal process indicated that there could be a further appeal. Eastlands asserted instead that there was no further appeal available. There was clearly an issue of legitimate expectation in play. The potential for a further appeal may influence conduct on the initial appeal and the potential for a further appeal was clearly stated in the leaflet and no explanation put forward as to why it was so.

Ms W’s payments towards rent did not support any criticism that the panel had failed to take them into account. Failure to consider the level of arrears generally was another matter, on which more below.

The generalised assertion that the decision to evict was one which no reasonable authority could have reached added nothing by itself.

The allegation that a reasonable request to adjourn was refused was unsustainable. There was no evidence that such a request had been made.

That Eastlands had failed to adhere to its own policy by granting a second starter tenancy didn’t get Ms W anywhere. There was no a legitimate expectation that the tenancy would be converted to an assured once Ms W had paid of the initial arrears and been allowed to remain. There was already a possession order and, on the state of the law at that time (pre Knowsley HT v White in the House of Lords), there could be no legitimate expectation of getting an assured tenancy as the AST would have been ended. There was no infringement of her existing rights (Wandsworth v Winder [1985] AC 461) as the right was to an AST, not an assured tenancy.

The appeal panel had wholly failed to provide advance copies of the evidence to Ms W before the hearing. Although the ASB issue was dropped at the hearing, Ms W had no way of knowing this. A reasonable panel would have checked that copy evidence had been provided and if it hadn’t it would have been a very bold panel which would have proceeded in the circumstances. Any argument of lack of prejudice made by Eastlands was a slippery slope and not to be endorsed.

The courts are entitled to expect that RSLs, in the same way as local authorities, will, for the protection of the interests of their tenants, adhere to their procedures. Not every failure will be significant, having regard to all the circumstances. The breach at paragraph 32 above is an obvious example. However, the provision of the evidence in advance is of obvious importance. Indeed I would hold that fairness dictates that it is essential that the tenant knows what material the landlord is proposing to put forward. It may, for example, give rise to a dispute of fact. Such disputes can arise even in the context of rent arrears. The tenant needs to be forewarned. It may also influence the tenant’s decision as to whether or not to seek outside help.

In addition, while the housing officer’s report only dealt with the current (second) tenancy, the panel had gone on to consider the arrears history under the first tenancy. Given that Ms W was not there, the prejudice was palpable and even if she had been present she would not have been aware in advance that matters beyond the existing tenancy were to be considered. And the appeal panel had to ask for the rent account to be produced.

Eastlands’ general policies, such as the ‘rent escalation policy’, ‘rent arrears policy’ and a page from another document that Eastlands were unable to identify but agreed with in evidence, make clear that the usual policy was not to seek an outright possession order in arrears cases unless there was a ‘clear and deliberate failure’ to pay. Ms W did not argue for a legitimate expectation based on these documents, in view of Weaver v L&Q in the High Court (on ground 8), but contended that these policy documents ought to have been considered at the panel hearing and that the panel should have indicated why, i the light of the policy, the decision was made to terminate the tenancy. There was no evidence that the panel had considered the policies or considered whether Ms W’s failure to pay was deliberate – in fact it had evidence to the contrary about housing benefit difficulties. The modest size of the arrears, about £380 at that date, emphasised the need for careful scrutiny.

For these combined reasons, the decision to seek eviction was one no reasonable authority could have reached. The key points being:
– failure to supply written evidence in advance
– the broadening of matters considered by the panel beyond the information in the case summary
– the failure to consider their own clearly stated policy for dealing with rent arrears, which also applied to starter tenancies.
– Of less import, but still a factor is Ms W’s legitimate expectation of a further appeal. Applying R(Bibi) v Newham LBC [2002] 1 WLR 237, Eastlands had committed itself in the appeal procedure document to a further appeal and it ignored this. By itself perhaps not a sufficient factor, but in the context of the other issues, regard must be had to this.

On rememdy, either the defence is made out or it is not. If it is, then the claim for possession stands to be dismissed. So ordered.

Permission to appeal was granted to Eastlands, not least because the Court of Appeal hasn’t considered starter tenancies, but also on the contentious public body and human rights issues not arguable in the High Court.

We understand that Eastlands have not pursued the appeal, so this is not going any further.

Comment
This is an interesting case in various ways. There is the starter tenancy issue, although given that the statutory exclusions that are involved in Introductory and Demoted tenancies are wholly absent, it is not a surprise that the court felt able to deal with a gateway b defence without any qualms. There are the successful elements of the defence, although there are distinct parallels with Barber where the failure to follow clearly set out policy was found to be a course no reasonable authority would have taken. There are some useful lessons on the best way to plead a public law defence in there as well.

But overall it is, after McIntyre, going to be another wake up call to RSLs on what a post Weaver world might look like. Where Eastlands failed was not a matter of not meeting a standard of the Court’s own devising, it was a failure to meet their own stated policy and procedure and doing so in a manner that could clearly prejudice the tenant. Anecdotal experience suggests that a fair few RSLs/PRSHPs are used to making decisions on the hoof, or by reference to whatever they want to throw in there, or by whatever the officers concerned consider to be fair or justified. The worst sanction they might have faced would be a telling off by the Ombudsman. Here is a clear example of the brave new world that they find themselves in, where even a mandatory, s.21 based, possession claim can be dismissed.

Our grateful thanks to Ben McCormack at Garden Court North for details on this case.

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.

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