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Starter tenancy: proportionality ‘just about arguable’


West Kent Housing Association v Haycraft [2011] EWCA Civ 992 (Not on Bailii. We’ve seen a transcript)

This was a renewed application for permission to appeal to the Court of Appeal on a second (or perhaps first- see below) appeal from the granting of a possession order. The ground of appeal was that the appellant tenant had a defence of proportionality which had not been considered by the District Judge and not considered adequately by the Circuit Judge in dismissing the first appeal.

Mr H had a starter tenancy (or AST) from West Kent Housing Association, an RSL/PRPSH. In January 2010, the RSL had a meeting, described as a re-hearing – at which it was decided not to extend or renew the tenancy, but instead serve notice. This was in the context of a complaint by a neighbour about ‘an act’ by Mr H that she saw through her door. The meeting notes suggested that it was difficult for the RSL review panel to reach a decision about what had happened, but on the balance of probability, they went with the neighbour. Mr H had and continues to deny the event occurred.

Thus possession proceedings cane before the Dartford County Court. At first instance, which was before either Manchester City Council v Pinnock [2010] UKSC 45 or Hounslow London Borough Council v Powell [2011] UKSC 8 were handed down, the District Judge did not consider proportionality at all and a possession order was granted.

There was then an appeal to HHJ Simpkiss.

Mr H “is a young man of 21 years old. He is insulin dependent and he is now married and has a child. Because of his insulin dependence, which has been with him since birth, he is vulnerable and it is said that he has suffered certain cognitive and comprehension difficulties. The result of the possession proceedings will be that he will become homeless and will therefore have to apply to the local authority for housing on the basis that he is homeless, and an issue will then arise as to whether he has become intentionally homeless.”

This was raised before the Circuit Judge. There had been no public law challenge to the review decision-making process, but it was raised that the decision was flawed.

The Circuit Judge held that there was no prospect of a successful challenge to the review process. The only signficant points raised were that Mr H denied the allegations and that the police had not considered them proveable to the criminal standard. However, these were not the issues that the RSL faced.

On proportionality, the CJ acknowledge that Mr H was vulnerable.

He noted that allegations had been made about his conduct in fact on several grounds, indecent exposure, intimidation of a neighbour and affray, and he also noted that the appellant denied all these allegations. The judge then referred to the speech of Lord Hope [in Powell] in which Lord Hope held that in relation to proportionality there was a high threshold before it could be argued, and it had to be seriously arguable before it could be raised before the judge. Proportionality in this context means a proportionate means of achieving a legitimate aim, and the court had to recognise that the local authority was likely to be in a better position than a court to assess whether there were good management review reasons for seeking the order. Ordinarily the local authority did not have to explain or justify its reasons for seeking a possession order to which it was entitled.

The CJ futher noted Lord Neuberger’s statement in Pinnock that it would only be in the exceptional case that Art 8 proportionality would be even arguable. Further, the local authority (here RSL) should be assumed to be acting in accordance with its duties.

The judge held that it was not necessary for the court to investigate whether the allegations relied on were correct. There had to be something put forward on behalf of the defendant to raise issues as to whether the decision to take possession was one which could stand and was lawful. In the present case there was a disagreement about the internal appeal process, but at the end of the day the judge was satisfied that, even though the events had occurred earlier in the tenancy, they were material which the local authority could take into account. There was an internal procedure and that procedure was followed.

There were no serious arguments to be determined before making a possession order and this was not an exceptional case. He dismissed the appeal.

Permission to appeal on the papers was denied. On renewed permission to appeal, Arden LJ accepted that arguably this should be treated as a first appeal, the DJ having reached a decision before the relevant judgments in Pinnock and Powell, so that the CJ’s decision was the first on proportionality.

Mr H submitted that this case was analogous to that of Powell in Powell v Hounslow. Ms Powell was facing possession from temporary accommodation due to rent arrears, apparently due to issues with or failure to make housing benefit claims. She was given permanent accommodation before the Supreme Court hearing, but Lord Hope stated that, if there had been a live issue it would “have been preferable for her to be given an opportunity for the proportionality of the order to be considered in the light of her personal circumstances”. If evicted Ms Powell would have been homeless and entitled to make a homeless application. There would have been a duty because of her children [For some reason, intentional homelessness was not raised by counsel for Mr H, or at least it is not referred to by Arden LJ]. Mr H would be similarly vulnerable and in priority need but would be found intentionally homeless if evicted.

Arden LJ found that the case was not particularly analogous to Powell. There had been a review in this case and, unlike this case, there was the potential solubility of Ms Powell’s rent arrears through HB. Further, the landlord in this case was not a local authority with a prospective Part VII duty.

Further, the Court must star from the postion that the landlord had fulfilled its duties when it concluded that the evidence of the neighbour was to be preferred and that it had to take into account its duties to other tenants.

The CJ had considered proportionality, but his decision should be considered on the basis of a first appeal.

The decision at the appeal hearing did not seem to me to consider Mr Haycock’s conduct since the incident complained of or his vulnerability and allied personal circumstances. It must be arguable whether a registered social landlord is to be treated as in a different position from a housing authority under a housing duty. Therefore those issues seem to me one which can properly be considered as at the second stage. In other words it seems to me, in the particular circumstances of this case, that it is just about arguable that the proportionality of the making of a possession order should have been considered by the judge because there were factors which had not been taken into account, namely whether his conduct since the start of the tenancy had been of a different order and the question of whether given that he would be likely to be homeless and might be intentionally homeless as a result of the finding on disputed allegations.

Permission reluctantly given.

The ‘interim’ decision to effectively treat this a first appeal, given the timing of Pinnock etc. is interesting, but surely now of limited applicability.

Still, this one will be worth watching. Partly because the landlord is an RSL and it wil be interesting to see how the Court of Appeal approach housing management in an RSL rather than a local authority, prima facie. Also because – as should be clear from the passages cited above (and there were more) – both the CJ and Arden LJ seem to get themselves into a terrible tangle over whether the fact that a landlord body might have a Part VII housing duty would make any difference to a proportionality defence. I can’t see why it would or indeed should, but this may be unfair on the basis of what was clearly an ex tempore judgment.

As to the defence, it is hard to say on the brief basis of this permission judgment.

Certainly it would have been stronger with a combined public law defence to the decision to seek possession – and this appears to have been confused by Arden LJ and perhaps the CJ with a challenge to the review procedure on standard public law grounds (flawed, considering irrelevant info or not considering relevant info, irrationality etc.).

From this brief permission decision it is impossible to tell if a full gateway b challenge was raised below (i.e. the decision to evict being one no reasonable person would consider justified in the circumstances, including Mr H’s personal circumstances). But as this appeal is now proceeding on proportionality alone, this is an all or nothing defence, as we noted in discussing Hounslow v al

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. Cait

    Does it seem to have gone through without question that the RSL is subject to public law defences? In itself that seems quite handy.

    (I am assuming this is a small but stock transfer type housing association)

    • NL

      Not sure about what kind of RSL is involved. There is no question raised on public body status – although this was just a permission hearing. It doesn’t seem to have been raised in front of the CJ below either. I would doubt any RSL is going to seriously question public body status unless they are prepared to fight it to the Supreme Court, after Weaver.

  2. Cait

    Weaver was great – but I wasnt sure if RSLs would try to distinguish themselves from that specific behemoth HA :) (since it didnt say ‘all RSLs are by definition public bodies) … So its good to know that in practice (and with an example) that its pretty much being accepted.


    • NL

      ‘Accepted’ may be putting it strongly. But an RSL would be faced with either distinguishing themselves from L&Q – complex, with no clear prospect of success – or challenging Weaver head on and seeing it through to the Supreme Court. Neither route is particularly attractive…

  3. Alex

    I don’t see why the fact a tenant would be found intentionally homeless if evicted would militate against granting a possession order. Quite the opposite in fact – if the reason for seeking possession is a deliberate act on his part then you’d think this would weigh in favour of evicting him. On the other hand, if a tenant would not be intentionally homeless, then this would suggest the reason for seeking possession is not his fault, so then why evict him?

    • chief

      I thought that part of the point of Bristol v Mousah was that the court is not supposed to speculate as to the possible outcome of any homelessness application that a defendant might make where reasonableness is in issue. If that is right, why should that question come into the equation when proportionality is being considered?

      • NL

        Your guess is as good as mine. I’m just reporting what the transcript said. Clearly the issue of intentional homelessness was raised before Arden LJ and played a part in her granting permission. How it might play out before the full Court of Appeal, though…

  4. chief

    Sorry, I expect you to be able to justify everything Arden LJ says ;-).

    You’re going to be very busy…

  5. Sam

    Is Arden thinking of Lewisham v Akinsola 1999 EWCA Civ 1420? The judge when considering reasonableness of a possession order should take into account a consequent homeless application if the main housing duty will or won’t inevitably follow (but shouldn’t second guess if there will be an issue for the local authority to decide). Difficult to imagine a case where the outcome of an application for homeless assistance would be inevitable though!

  6. JS

    I am rather baffled by the quotations in this – if the facts are put in issue by a tenant then it is for the court to resolve them – Pinnock is as plain as a pikestaff on this .

    If the CJ held ” that it was not necessary for the court to investigate whether the allegations relied on were correct ” then he was plainly wrong .

  7. chief

    This is now listed as floating on 29th/30th November before Rix, Etherton & Patten LJJ.

    • J

      I hear it might move though – two more were sent to the CA from the High Ct (B’ham District Registry) in the last few weeks and I think they’re trying to get them joined

      • chief

        Yeah, I’d forgotten about those. Looks like that is what is happening, the hearing has been vacated and it has gone back to the List Office, presumably for a lengthier listing when all of these cases are going to be heard.

        • J

          Not to mention the private sector A8 case currently awaiting a decision on transfer to the CA

  8. Katie Barnes

    Do you know when we can expect to find out the outcome of the appeal?

    • J

      There are now three joined cases all due for argument in the CA in February 2012 (I think)

  9. S

    Directions hearing was yesterday. The three cases will be heard on 28 & 29 Feb. There is a 4th case that may be joined or may not.

    • chief

      They’re now listed before Neuberger, Richards & Davis LJJ.


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