Denry Okpor v London Borough of Lewisham, Bromley County Court 25 October 2011 [Transcript not publicly available]

This was a rolled up permission to appeal and appeal hearing (on which more later) for appeal to a Circuit Judge from a possession order made by a District Judge at Bromley. At issue was whether the District Judge was wrong to reject a) a proportionality defence and b) a gateway B public law defence arising from Lewisham’s failure to follow its own policy. It is interesting as an example of proportionality/gateway B defences in action in the County Court, but also somewhat frustrating, for reasons which will become clear.

Mr Okpor was the secure tenant of Lewisham. At the age of 15 he had been taken into care by Lewisham following abuse. He left care aged 18 in 2006. In 2009, aged 21, he was given the secure tenancy. Mr O went into full time higher education later that year and has remained in full time higher education. This meant that the relevant Children Act 1989 provisions for care leavers continued to apply and would do until he was 24, if still in full time higher education. Mr O was receiving support from the Lewisham Leaving Care Team.

In early 2010, Mr O began to build up rent arrears. His student loan, with which he paid the rent, was delayed (as with many that year). In the interim he subsisted with help from friends and social services. The loan was eventually paid on 4 March 2010. In the interim there had been several contacts from rent income officers pursuing the arrears and possession proceedings had issued by February 2010 on grounds of rent arrears. These proceedings were not pursued as Mr O’s aunt paid off the arrears before hearing. There had been no attempt by the housing officers to contact the Leaving Care Team before commencing proceedings.

In March 2010, Lewisham discovered that Mr O had sub-let the flat from January 2010 after the sub-tenant claimed housing benefit. Lewisham served a Notice to Quit, which expired in April, then brought proceedings.

Mr O admitted the sub-let in January, which was on an agreement for 3 months. His evidence was that he was panicked by the rent arrears and the previous possession claim. As he could not get funds before the student loan was paid, he had let the property to pay the arrears. At first instance trial, it was agreed that the first sub-tenant had moved out in February 2010, Lewisham alleged there had been a further sub-let and this was upheld. There was no challenge to the validity of the NTQ, or to Mr O’s loss of security of tenure.

Possession was granted at first instance, within 14 days, with no reason to extend time under s.89 Housing Act 1980.

Mr O defended at first instance and on also as the basis for permission to appeal on the following grounds:

i) A gateway B defence: Lewisham had – as required – produced a protocol for care leavers over 18. Two clauses of the protocol were relevant:

3.13:
Ongoing advice, information and support will be available to the young person until the age of 21 (24 if in full-time higher education) by the Leaving Care Service.

3.14:
Should any tenancy issues arise Housing must, in the first instance, try to resolve the issues with the young person. If this fails, they should then contact the LC Social Worker/PA.

In Mr O’s case, there had been no attempt by Housing to contact the Leaving Care Social Worker. Although Mr O had spoken to the social worker about the arrears and possession claim on that ground, and the social worker had told Mr O to speak to Housing, there was no contact between Housing and the social worker before rent arrears possession proceedings, or the subsequent proceedings, were issued. Lewisham had acted in breach of its own policy. Barber v. LBC Croydon relied upon (our report here). A later letter dated October 2010 by the Leaving Care worker made clear that their view was that they supported the continuation of Mr O’s tenancy.

ii) Proportionality. Mr O had made a panicked decision faced with rent arrears possession proceedings where Lewisham were well aware of his difficulties in the delayed student loan. He was a care leaver and a vulnerable person, who despite this was in higher education, studying for an accountancy degree. He had a partner and an infant child. A sub let had been admitted but was of limited duration and had no purpose save to try to resolve the arrears. Again, the Claimant should not have instituted possession proceedings without consulting the Leaving Care team as per the policy. There was no evidence that any of this had been considered by the Claimant.

At first instance, the District Judge dismissed both grounds of defence. At the permission to appeal hearing Lewisham argued on the gateway B ground that:

the test to be applied by the local authority was that in Doherty i.e. was the decision one which no reasonable person could consider justifiable. Mr Browne [for Lewisham] referred to Woolf J in Grant: “the fact that a body must have reference to a policy does not mean that they have to follow it, but if they do not then they must give good reasons for not doing so.

At first instance, Lewisham had argued that there was nothing in the later representation by Leaving Care that had not already been considered by Housing and also that Leaving Care had been aware of the proceedings and should be taken as having made all the representations that they wished to. The Circuit Judge, reviewing the first instance decision, held that:

He decided that although there was a breach of the policy, the views of the Leaving Care team had been provided and that despite this flaw it did not affect the overall decision to proceed with the claim for possession. He felt that any benefit the Appellant should have obtained under the policy had in fact been obtained. DJ Thomas made no error, he did not misunderstand the facts, he did not leave any relevant material out, or take into account irrelevant material. He was entitled to make the judgement he did.

On the proportionality ground, the Circuit Judge quoted the District Judge’s judgment:

It is undoubtedly the case and that Mr Okpur has had many difficulties in his early life, but despite those difficulties he is determined to furnish himself with an education and the ability to make a contribution to himself, to his family and the society he finds himself in. But, he did undertake, he says in desperation, a subterfuge in order to deal with that situation. That subterfuge deprived him of the security and as I find, there was a further subterfuge after the first one was discovered. That has brought about the situation which he finds himself in and I find that it is not necessarily a disproportionate response by a local authority, aware as it is of his background, aware of his wife and children and aware of the other circumstances, to balance against that their duty to properly manage their property and to take actions when appropriate if the use of housing is abused. Therefore, I find that it is not a disproportionate decision in this case to conclude that a notice to quit should have been served or that these proceedings should have been brought. Therefore, I find that that ground also fails.

The CJ found that the DJ had properly taken into account Pinnock and Powell, and that his decision that possession was proportionate was within the ambit of a reasonable view, having considered Mr O’s circumstances. Permission was also refused on this ground.

There was a further complication with the nature of the hearing. The Circuit Judge had decided not to consider the application for permission on the papers but to set down an oral hearing, and then, ‘in order to save time’, to treat the hearing as a rolled up hearing – with submissions on both permission to appeal and the appeal. However, the decision made on each ground of appeal was to refuse permission:

In considering the whole of the careful judgement of DJ Thomas, I am not satisfied that he reached a decision which on any analysis is clearly wrong or outside the generous ambit within which reasonable disagreement is possible. I am satisfied that he took into account relevant matters, did not misunderstand the facts, and certainly understood the law. I am not satisfied that his decision was one which no reasonable judge, faced with the same facts, could make.

Overall I am not satisfied that this appeal has real prospects of success. There is no evidence before me of any other compelling reason for granting permission to appeal. If for some reason I am wrong, I would refuse the appeal for the same reasons.

The effect of this refusal of permission is to prevent any further or renewed appeal as this was an oral hearing (despite the paper application stage having been skipped), s.54(4) Access to Justice Act 1999 and CPR 52.3(2). Thus the usual option of renewing a refused paper application to the appeal court was not open to Mr O. The case can go no further.

Comment
While the Supreme Court left proportionality to the ‘good sense’ of the County Courts, a case like this strikes me as highlighting the need for at least an element of benchmarking by the higher courts. It is clearly a decision which could easily have gone the other way. There are also some elements that need the higher courts to address them. For example, the occupier’s circumstances – Pinnock & Powell seem to suggest it is circumstances at the time of the proportionality review that should be considered, but then what of a case like this, where the history is a clear factor in the occupier’s vulnerability (and the details of the history are awful)?

Some cases brought on proportionality almost certainly shouldn’t have been. This doesn’t strike me as one of those cases.

On the gateway B and failure to follow policy, the decision was that the failure made no material difference and that the Leaving Care Team was aware of the situation ‘from a relatively early stage’ and had had the opportunity to make representations. But the decision to seek possession was made without contacting the LCT and without considering any factors they may have raised. Against this were just un-evidenced assertions from Lewisham Housing that they had considered all the issues anyway, although the fcators stated did not include Mr O’s care history.

The thrust of Lewisham’s policy at 3.14 is arguably that the LCT should be involved in seeking to resolve tenancy issues, not simply ‘make representations’ for housing to consider in deciding whether to evict. The ‘multi-agency’ approach this would suggest would make the failure to follow policy closer to that in Barber. Again, I think this is a decision that could easily have gone the other way.

But this case is not going to be the one that exercises the higher courts. The CJ’s decision – of the Court’s own motion – to skip a paper application and set the matter down for a permission hearing (and further confuse matters by also treating it as a substantive appeal hearing, rolled up) may have the merits of administrative efficiency, but has arguably deprived Mr O of the opportunity to take the matter further. If permission had been given, but the appeal dismissed, thing would have been otherwise.

While there is little that can be done if the court makes such an order of its own motion, it is a procedural difficulty of which appellants should beware.

With thanks to John Gallagher for details and transcript.