One of the questions posed as a result of Hounslow LBC v Powell  UKSC 8 [our report here] is what happens if a proportionality argument is raised after a possession order has been made, but before eviction.
Powell found that s.89 Housing Act 1980, which limits the time for a stay of possession order to a maximum of 6 weeks, was compatible with Article 8. So, once a possession order has been made, does the court have any discretion to revisit or extend a period of stay beyond 6 weeks?
Ngesa v Crawley BC  EWCA Civ 1291 [Not on Bailii yet] addresses this issue, though perhaps not in a very satisfactory manner. It was a Court of Appeal permission hearing in front of Rimer LJ. I believe that the appellant was not represented and, as we’ll see, the facts are hardly attractive, but nonetheless, the Court’s view is clear.
Ms N was an unsuccessful asylum-seeker. She had applied to Crawley as homeless under a false name and provided a non-secure tenancy as temporary accommodation. A notice to quit was served after she fell into rent arrears. Crawley sought possession. No defence was filed and no article 8 point raised. Crawley were granted a possession order stayed for 28 days. After the 28 days, Crawley obtained a warrant.
Ms N applied to stay the warrant and another DJ granted a stay. Crawley appealed. They had by now discovered Ms N had applied under a false name. They also relied on s.89 Housing Act 1980 as imposing an absolute limit of 6 weeks delay in executing an order. The appeal was allowed and leave to re-issue the warrant given.
Ms N sought permission to appeal out of time. She argued that the Circuit Judge on first appeal ought to have applied article 8 of his own motion and to have adjourned to get a fuller picture of the facts.
Permission to appeal was refused. Rimer LJ held that in the absence of any defence, the first DDJ had no alternative but to grant possession. The granting of a possession order circumscribed the Court’s subsequent powers by operation of s.89 HA 1980. As the Supreme Court in Powell had found s.89 to be compatible with article 8, there was no basis for a challenge to the operation of s.89.
As we noted at the time, the decision on s.89 in Powell was a major restriction on the discretion of the Court suggested in Pinnock, and indeed seemed to go against Pinnock in that regard. The effect, at least as set out in this case, is that a proportionality defence has to be raised in the possession proceedings before an order is made. While it may be possible in some circumstances to seek a set aside of a possession order (under CPR 39.3 or indeed CPR 3.1), that will not always be so. If the strictly obiter statements in Powell stand, that will be the end of the matter, no matter what the Court’s view might be on the proportionality of an eviction once the circumstances have been raised in a stay application.
Hat-tip to January’s Legal Action ‘Recent Developments in Housing Law’ for news of this case.