Proportionality. A precis on ‘summary’

Holmes v Westminster City Council [2011] EWHC 2857 (QB)

An interesting appeal from a summary possession order on the issue of consideration of proportionality. While the outcome is not, perhaps, a surprise, some of the arguments are. Plus this is an example of the High Court grappling with how the County Court should approach a summary possession claim, post Pinnock and Powell.

Mr H had a non-secure tenancy from Westminster as temporary accommodation following Westminster accepting a s.193 Housing Act 1996 duty in 2005. In 2009, Westminster told Mr H it had discharged duty following his failure to attend two appointments for inspection of his accommodation. Mr H requested a review. In the interim, a notice to quit was served and possession proceedings brought in August 2009. These were adjourned pending the outcome of the review. The review decision in January 2010 withdrew the discharge.

However, in February 2010, before the possession claim was withdrawn, there was an alleged assault by Mr H on two council officers. Westminster pursued the possession claim. It should also be noted that Mr H has a history of mental health problems. He has been diagnosed with severe anxiety, obsessional behaviour, depression, paranoid personality disorder, seasonal affective disorder, alcohol dependent syndrome and possibly post traumatic stress disorder.

Mr H filed a defence and Westminster applied to strike it out and alternatively for a possession order on a summary basis. At the hearing of the application, Mr Recorder Widdup made a summary possession order and struck out the defence.

Mr H appealed to the High Court. We’ll come to the grounds of appeal later on, but overall, the basis was that a summary order should not have been made when there were disputed issues of fact that went to the proportionality of possession proceedings.

Mr Justice Eady’s judgment contains a potted history of human rights and public law challenges to summary possession proceedings, from Kay v Lambeth to Manchester CC v Pinnock and Hounslow LBC v Powell. This is worth reading, but largely straightforward, save that Eady J seems to have some trouble with ‘exceptionality’. While he notes the very clear statements in Pinnock that ‘exceptionality is an outcome not a guide’ in considering an arguable Article 8 proportionality defence, he returns to the issue in Powell, stating:

It was again emphasised at [37], as in Pinnock, that

” … there will be no need, in the overwhelming majority of cases, for the local authority to explain and justify its reasons for seeking a possession order. It will be enough that the authority is entitled to possession because the statutory pre-requisites have been satisfied and that it is to be assumed to be acting in accordance with its duties in the distribution and management of its housing stock”.

It will be observed that this statement of the law comes close, although it has been disavowed, to espousing a test of exceptionality.

[I would say, in passing, that this is not so. That passage in Powell addresses whether a local authority needs to provide a justification for seeking an order in each case and, in saying that they don’t, sets out the presumption that the authority would be acting under housing management duties as a justification. That passage has no bearing on the exceptionality of a proportionality defence, as the question is not necessarily whether the LA’s actions were justifiable, but whether they were proportionate. Hypothetically, there could be many situations in which the tenant’s Article 8 rights made seeking an order disproportionate, but this would not affect a presumption that the Council was acting in accordance with its housing managment duties for the public good.]

Having established the outline of the proportionality defence and that the Supreme Court held that it applied to non-secure tenancies provided under s.193 HA 1996, Eady J looks at the limited guidance to the County Courts to be found in Pinnock and Powell, He cites para 41 in Powell:

In the ordinary case the relevant facts will be encapsulated entirely in the two legitimate aims that were identified in Pinnock … at [52]. It is against those aims, which should always be taken for granted, that the court must weigh up any factual objections that may be raised by the defendant and what she has to say about her personal circumstances. It is only if a defence has been put forward that is seriously arguable that it will be necessary for the judge to adjourn the case for further consideration of the issues of lawfulness or proportionality. If this test is not met, the order for possession should be granted. This is all that is needed to satisfy the procedural imperative that has been laid down by the Strasbourg court

From this Eady J takes the view that the County Court Judge should

deal with possession claims in homelessness cases on a summary basis unless a proportionality argument has been raised which can be categorised as “seriously arguable”. That is to say, I would presume, it needs to be shown that there is a serious argument available that the public policy considerations guiding the local authority’s application for possession should be outweighed in the particular circumstances by Article 8 considerations

On the specific issues raised by a proportionality challenge in a non secure/part VII accommodation case, it is noted that it is open to the tenant to challenge the factual basis for the reason why possession is sought and that the tenant should be told of the reason, pace Lord Phillips at 114 in Powell

Sometimes the authority will be reacting to the behaviour, or perceived behaviour of the tenant. In the latter event the authority may be proceeding on the basis of a factual assumption that is unsound. If the only reason that the authority is seeking possession is that the tenant has been guilty of bad behaviour, obtaining possession will not further the legitimate aims of the authority if that factual premise is unsound. If the defendant is not informed of the reason why the authority is seeking possession he will be denied the opportunity of displacing the presumption that the authority’s action will serve a legitimate aim.

In the present case, Mr H had indicated in some documents that he wished to challenge the factual basis of the allegation of assault, stating that he had in fact lost his balance and fallen on the Council officers who were trying to serve him when he tried to rip up the document. This was not in the pleadings, however, and was not the only basis on which the Recorder’s decision was appealed.

Turning first to Westminster’s submissions, they began with what we might call a ‘bold’ (in the Yes Minister sense) argument that the proportionality defence didn’t apply to non secure/part VII accommodation, submitting:

that Parliament had determined that the Council should have a right to possession without the court considering its reasons: see the Housing Act 1985, Sch 1 at paras 4 and 6. It was submitted that it would be antithetical to the Council’s right to manage such accommodation if it were required to give a tenant a right to question a reason for seeking possession. It was argued that there was no legal basis for grafting the rules of natural justice on to a process where the right to possession is considered to be, for sound public policy reasons, unconditional. It was accepted that the rules of natural justice might come into play at a later stage, if the Council sought to argue that Mr Holmes had made himself intentionally homeless. Such considerations should not, however, intrude upon the process of obtaining a summary order for possession.

Rather gently, Eady J found that the Supreme Court had said that the proportionality defence was available and that was that.

It was clear on the facts that the alleged behaviour of Mr H in February 2010 was the reason the Council sought possession. But that in itself did not decide the question of whether the Recorder was entitled to proceed on a summary basis.

Westminster submitted that the Recorder was entitled to do so, that there was no requirement to hold a ‘quasi criminal trial’ to determine whether Mr H was guilty of assault. What mattered was whether to Council had reasonable grounds to believe he had behaved in the way described by its officers. Unacceptable conduct did not have to reach the standard of a criminal offence or even a civil wrong, nor need to be found so on the evidence. The Council’s own anti social behaviour policy set out that it would take ‘further action’ to protect staff facing serious anti social behaviour and that in the circumstances this included eviction.

On the disputed facts, no positive case for a defence had been pleaded by Mr H. There was, therefore, no ‘seriously arguable’ defence on disputed facts for the recorder to consider. The burden was on Mr H in the light of the evidence before the Court, but he had not shown ‘substantial grounds’ for the nedd for a hearing. The Recorder was entirely entitled to decline to give directions for a hearing on the disputed facts and to proceed with a summary hearing under CPR 55.

In addition to raising the disputed facts of the February incident, Mr H argued that:

i) “the Recorder should have given directions to resolve any outstanding dispute as to the underlying facts, for the reason that the relevant law was in a process of development.” The hearing was between the judgments in Pinnock and Powell.

Held, this was not the case. The law had been clarified in Pinnock, before the recorder’s decision and the further clarification in Powell was to the same effect in so far as relevant.

ii) Mr H argued on public law grounds, that the Recorder had disregarded relevant matters which should have been taken into account. These originally included Housing Corporation guidance, which was not pursued, and Secretary of State’s Guidance the rehabilitation of perpetrators and support for vulnerable groups. This was also dropped, as it had not been raised before the recorder at all. This left the Council’s own policy on Anti-Social Behaviour as the matter that the Recorder should have had regard to.

The Council’s ASB policy stated that enforcement, including by eviction, would be used in appropriate circumstances and where other attempts at resolution had failed or been exhausted.

Held: The Council had had reference to its ASB policy and indeed had referred to it in a letter to Mr H in April 2010. A further letter had referred to the seriousness of the incident of February 2010 and the decision to pursue possession as a consequence. This was consonant with the policy. So the policy played a significant part in the reasoning behind the decision to pursue possession, unlike Barber v Croydon London Borough Council [2010] HLR 26. The Recorder was entitled to conclude there was no cogent evidence on a breach of any policies.

iii) The Recorder should have found a breach of s.49A of the Disability Discrimination Act 1995 by the Council.

Held:

The Recorder in fact asked counsel appearing for Mr Holmes, as emerges from the transcript of the hearing, how it was that she alleged the Council was in breach of its statutory duties. Her response was unspecific, in the sense that she referred to the Council not having taken sufficient account of Mr Holmes’ “mental health issues”. The learned Recorder rightly noted that there was “a need for cogent evidence of breach of policies or duties under statute before such a defence can carry weight”. He concluded that he was unable to identify any cogent evidence to the effect that there had been a breach of inter alia the 1995 Act

The Recorder had been right to do so.

Westminster argued that “an appellate tribunal could refuse relief in this respect on the basis that any deficiency in the discharge of the statutory duties would be made good following eviction, by reason of the fact that Mr Holmes would continue to be owed duties as a homeless person: see e.g. the discussion of the Court of Appeal in Barnsley Metropolitan Borough Council v Norton [2011] EWCA Civ 834″. However, there was no need to decide on that point.

iv) Mr H argued that the Recorder had applied the wrong test on deciding to strike out the defence. He had asked if there was a real prospect of success, where the test on the strike out was whether it was ‘bound to fail’.

Held: The Recorder was granting summary possession under CPR 55. The appropriate test for the strike out did not arise directly. However, even if it was a strike out under CPR 3.4, he was entitled to conclude that the defence had no reasonable prospects of success. ” It is clear from his judgment that he took the view that the matters raised in the defence were in fact bound to fail.”

Appeal dismissed.

About Giles Peaker

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, and still is Nearly Legal on Google +.
Posted in Homeless, Housing law - All, Introductory and Demoted tenancies, Licences and occupiers, Possession and tagged , , .

7 Comments

  1. It strikes me that there are a number of errors in this judgment . The most striking are that which you identify as to exceptionality and proportionality not being the same thing . Moreover, there is a profound confusion at the heart of the judgment , which no doubt arises from the opacity of the judgments in Powell as the nature of consideration of the legitimate aim . A legitimate aim is to be presumed but to suggest that its nature cannot be considered properly in the balance must be wrong as to do so cuts out the essential elements of considering proportionality namely is there a rational connection between the aim and the interference with Art 8 rights and are the means more than is necessary to justify the ends . To do so leaves us with proportionality in name only and a test eviscerated of content which will not survive further challenge in the ECtHR.

    As

  2. Oops cut myself off there.

    As for his findings on the questions of fact – Mr Holmes’ defence may have seemed far fetched but the idea that it was not yet pleaded seems to me to be far too technical an approach. He is entitled to have the ” justification ” for his eviction determined by an independent and impartial tribunal. The perceptions of a housing officer are not the same as the actual facts – which are for that tribunal to find .

    Perhaps the most important lesson to learn from this case are (a) seek a brief adjournment if you need time to put your case in proper form – following Lord Bingham’s guidance in Kay that the defendant should be given sufficient time to file a properly particularised defence and (b) to prepare properly for the summary hearing and in particular to make clear if there are matters that require further investigation

    • JS

      Agreed on all counts.

      I think the trouble was partly that there was a pleaded defence which didn’t raise some of the issues, including the dispute of facts, making it a bad example of how to deal with a suggestion of an Art 8 defence.

  3. JS – I’d love to agree with you, but I can’t see how your analysis survives Powell.

    In Powell they said that the approach to proportionality advocated in Huang (i.e. the de Freitas approach) does not apply to possession claims. That is because it is not for the court to go behind the reason for possession unless it is irrational.

    The House of Lords in both Huang and Daly both acknowledged that the approach to a proportionality review would differ depending upon the context. With Bingham saying in Huang that immigration was different to housing because the immigration rules are not debated in Parliament, whereas housing legislation has been for a century or more and the balance has been struck.

    Further, I don’t see how such an approach falls foul of Strasbourg either. My reading of Kay v UK was that Strasbourg had thrown the towel in and had pretty much agreed that the approach in Doherty (i.e. jr + consideration of personal circumstances and the willingness to resolve disputes of fact) was compliant.

  4. S

    That simply cannot be right . Lord Hope’s reference to Huang should be construed in this sense – i.e it is not for the court in housing cases to seek to evaluate the strength of the legitimate aim which if one reads his judgment carefully is what he can only be talking about. It cannot be that the remaining elements of proportionality are stripped out as the effects of that would be that it is not a proportionality test at all . It would frankly be absurd to suggest that proportionality in housing cases does not require the consideration of whether there is a rational connection between the aim and the means. Furthermore, it is at the very heart of proportionality that the means must be no more than is necessary to achieve that end . Kay -v-UK is silent on those points as they simply did not arise .

  5. JS, I think the malaise is deeper than you think. Remember that the legitimate aims that are taken as “given” are vindicating the local authority’s ownership rights and enabling it to manage its housing stock (Pinnock [52]; Powell [36]). If we make this assumption, then in each and every case there will be a rational connection between aim and means – eviction is always of achieving these rather nebulous ends. Nor would it make any sense to argue that the means proposed are more than necessary – ‘we need to evict because we want to give the property to somebody else’ will win every time. If that’s a legitimate aim, what action short of eviction could achieve it? You’re right, of course, that this is no proportionality review at all; the consideration of the occupier’s personal circumstances and factual objections divorced from the LA’s reason for seeking possession (Powell [37]) is Wednesbury by another name.

    I therefore believe that Eady J’s approach here is consistent with Lord Hope in Powell. But it is also worth looking at Lord Phillips’ speech, which I believe is more different than might at first appear. Lord Phillips states that the legitimate aim will be presumed ‘unless the tenant raises a challenge’ (at [88]), which is a different kettle of fish entirely to Lord Hope’s seemingly irrebuttable presumption. He also says that the LA must have regard to the policy of the legislation depriving the tenant of security of tenure, and ‘cannot simply rely on the fact that it owns the property’ (at [90]). This seems to directly contradict Lord Hope’s assertion that vindication of the LA’s ownership rights will itself amount to a legitimate aim.

    Given the history of art. 8 possession cases, I can understand entirely why Lord Phillips might want to cloak dissenting reasoning in the language of apparent agreement. But the other 5 judges expressed agreement with both Lord Hope and Lord Phillips, so, insofar as they may disagree, which of their views represent the law must be an open question.

  6. There is a fatal flaw in that analysis Alex. If that were the legitimate aim then in any case whatsoever a non-secure occupier could face a claim based simply on ” we want to give it to someone else ” – as both the introductory and demoted regimes make clear that would not be the aim of the statute at all . Their purpose is to ensure that the tenant behaves . Secondly, if it is vindicate ownership rights alone then that is nothing other than reverting to Qazi !

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