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16/06/2011

Not too late but too little

Southwark LBC  v Barrett Bromley County Court 18/03/2011

A County Court Pinnock case. Unsuccessful but interesting in that it was a transitional case, commenced before the Pinnock judgment, and to the extent that it shows the court using the ‘seriously arguable’ threshold.

Ms Barrett was a non secure tenant, the tenancy being granted under Part VII Housing Act 1996. The landlord served notice to quit after Southwark discharged duty, following Ms B’s refusal of alternative accommodation.

Ms B was advised by a solicitor that there was no defence (this was pre Pinnock) and she did  not attend the hearing. About 4 weeks later, after Pinnock, she applied to set aside the possession order or, alternatively, stay execution for 3 months. The ground was that to do otherwise would be a breach of Art 8.

The District Judge followed Hackney LBC v Findlay (our report) and applied the CPR 39.3(5) checklist. He found that Ms B had acted promptly after finding out about the possession order, had a good reason for not attending trial in the previous solicitor’s advice, so cleared that hurdle.

However, there was no reasonable prospect of success in defending the claim as her case did not clear the ‘seriously arguable’ threshold set out in Pinnock. Art 8 was engaged, but Ms B had been through the s.202 review and had decided not to appeal Southwark’s decision that the accommodation refused was suitable or the decision to discharge duty. Application dismissed.

No mention of Powell, which would probably have doomed Ms B to 6 weeks at most, even if she had cleared the threshold.

[Edit 17/6/11. We’ve had a note from Counsel for Ms B, just clarifying about Powell:

Your report says no mention of Powell. The case was argued the week before the Powell decision was handed down. Judgement was reserved. We subsequently informed the DJ that Powell was due to be handed down and he agreed to receive written submissions on Powell and reserve judgement until receipt of those submissions.

Since he decided that there was no seriously arguable defence, then the point about Powell retaining the limit on suspension at s.89 HA 1980 didn’t arise. But NL is right to say that it would have been a difficulty in that all Ms Barrett was arguing for was more time.]

Hat tip to Legal Action recent developments in housing law for this one.

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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